
    JOE KIRCHNER et al. v. STATE.
    No. A-4579.
    Opinion Filed Feb. 4, 1925.
    (232 Pac. 1118.)
    (Syllabus.)
    Appeal from County Court, Major County; Harry Randall, Judge.
    Joe Kirchner and Ray Baird were convicted of assault and battery, and they appeal.
    Affirmed as to Baird. Modified and affirmed, as to Kirchner.
    
      Seymour Foose and R. C. Brown, for plaintiffs in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiffs in error, here referred to as the defendants, were convicted of an assault and battery. The punishment of defendant Kirchner was fixed by the court at confinement in the county jail for 30 days and to pay a fine of $25 and costs; the penalty assessed against defendant Baird was a fine of $10 and costs. The defendants say that the evidence was insufficient to support the verdict. The record shows that this prosecution arose out of a mutual juvenile fist fight, in which the two youthful participants, Forest Miller and Raymond Kirchner, were sons of farmers who were enemies of some years standing; that the fight between these two boys took place on the highway near their homes and continued for about 20 minutes. Defendant Ray Baird, as he claims, in the interest of fair play and to avoid bloodshed or serious trouble, came up while the affray was in progress and took a pocket knife away from the Miller boy. Towards the end of the fight the defendant, Joe Kirchner, father of Raymond Kirchner, came near and is said to have encouraged the difficulty, by directing his son’s attacks on the other boy. The Miller boy, who was receiving the more severe punishment, says that Baird held him while the Kirchner boy administered further blows with his fist. Defendant Kirchner, the father, along with the other witness, denied that he participated in the fight by either words or action. From a reading of this record it is impossible to say definitely who was the most to blame. The members of the families on both sides seem to have passively encouraged the difficulty. Evidence tending to show active participation on the part of either defendant is weak. Without a further analysis of the testimony, we think the punishment assessed against defendant Kirchner should be reduced by remitting. the jail sentence. It is therefore ordered that the punishment assessed against defendant Kirchner be modified to a fine of $25 and costs, and that the judgment as to defendant Baird be affirmed.

DOYLE, and EDWARDS, JJ., concur.  