
    *The Commonwealth v. Mark Perdue and Samuel Dillion, Senior.
    Criminal Law — Indictment—Affray—Assault.—If two persons he indicted for an affray, and acquitted of the affray, hut the verdict And one of them guilty of an assault against the other, and there is no separate Count charging the assault, judgment ought to he rendered on that Indictment in favor of both Defendants.
    These two Defendants were indicted before the Superior Court of Eranklin county, for an affray in assaulting and beating each other, “to the terror of sundry citizens then and there assembled, &c.” The verdict of the jury acquitted both of them of the affray, but found the Defendant Dillion guilty of a breach of the peace in assaulting the other Defendant, Perdue, and found, conditionally, that if the Law be against the said Dillion, then they find him guilty, and assess his fine to one dollar ; but if the Eaw be for him, then they find him not guilty. The question was adjourned to this Court, what judgment should be rendered in this Case.
    
      
      See monographic note on “ Indictments, Informa-tions and Presentments ” appended to Boyle v. Com., 14 Gratt. 674.
    
   BROCKENBROUGH, J.,

delivered the opinion and judgment of the Court:

It was competent for the Attorney prosecuting for the Commonwealth to insert in, hjs Indictment separate Counts, charging each Defendant with an assault and battery, and in such case the jury might have convicted either or both of the Defendants of the assault, although they should be acquitted of the affray ; as he has not done so, but has proceeded to trial on the joint offence charged against both, he cannot obtain judgment against one of them for a separate offence which is not charged against him. The following judgment is to be entered: “ The Court is unanimously of opinion, and doth decide, that as there is no separate Count in this Indictment, charging the Defendant Dillion with an assault on the other Defendant, Perdue, and as both Defendants are acquitted of the affray with which they ar,e charged, judgment must be rendered in this Case for both Defendants, which is to be certified.”  