
    Roane et al. v. The State.
    May 13, 1895.
    Indictment for assault and battery. Before Judge Kimsey. Rabun superior court. February term, 1895.
    The indictment was against 'W. F. Roane and his sons Alex, and Marvin. Marvin was acquitted; the other two found guilty. They moved for a new trial on the grounds, that the verdict was contrary to law and evidence; and that the court erred in so instructing the jury, as to the form of their verdict, that they could find one or two of the defendants guilty without finding all guilty. W. F. and Alex, testified for each other, and Marvin testified for W. F. and Alex. There was also a ground of newly discovered evidence. According to the testimony of Moses L. Shirley, he was going on the road to town, and when in the neighborhood of Roane’s house he stopped to fix his saddle, the girth of which had broken. While so engaged he heard Alex. Roane say, “Iiow’re you,” very insultingly. He looked up and saw Roane and Marvin. Roane said, “Kill him, God damn him; knock him down, God damn him”; and they began throwing rocks at Shirley. Roane pulled his pistol and began shooting at Shirley; shot three times and threw his pistol, which went over Shirley’s head, who would have picked it up but they pushed him so he could not. He stooped down to pick up a rock, and Alex, hit him on the head. At last he drew his pistol and shot at them. They followed him up the road about 150 yards, cursing and abusing him. They threw a half-bushel of rocks at him. He turned sick, and sat down on the side of the road on top of a hill to rest. They followed him and commenced on him again. They had three skirmishes. They did not know he was coming that way. He had had a dram, but was not drunk; had stopped on the hill heyond Roane’s house with John Donalson and Al. Smith; went right on from there to where the Roanes were waylaying for him; did not know how they knew he was coming; supposes Marvin saw him from the potato patch and went and told them. He was corroborated in certain particulars of his testimony by John Donalson, Al. Smith, Mrs. Murray and Mrs. Dickson. The testimony for defendants tended to show, that Shirley came by the place hollering and cursing, and made the first assault and did the only shooting that was done; that none of the Roanes had a pistol; that Alex, hit Shirley with a rock while he was trying to shoot W. D. Roane, etc. It does not appear that Marvin took active part in the difficulty, further than is indicated in the testimony of Shirley. The newly discovered evidence is to the effect that Shirley talked with one Jones and left on his mind the impression that the Roanes did not do any of the shooting but that Shirley did it all himself, and that he was going to swear that the Roanes did part of the shooting just to see what they would say; and further tended to support the defendants’ testimony as to certain circumstances mentioned therein.
   Lumpkin, J.

1. Where several persons, jointly indicted for an offense which could be committed by one person alone, are tried together, there may, if the evidence so authorizes,, be a lawful conviction of one or more of them without convicting all.

2. The evidence in this case warranted the verdict, and there was no merit in the ground of the motion for a new trial relating to newly discovered evidence. Judgment affirmed.

J ones & Bowden, G. L. Bass and R. A. E. Hamby, for plaintiffs in error. Hoioard Thompson, solicitor-general, and F. M. Johnson, contra.  