
    Sims et al. v. The State.
    1. Four persons indicted together for riot having been put upon trial, and the State having announced that it would claim no conviction as to two of them, and then having examined these two as witnesses against the other two, a verdict of guilty as to all was not void, and might be set aside as to two and left to stand as to the other two. The grant of a new trial as to the former will not work a new trial as to the latter.
    2. There being no objection to the examination of two of the accused as'witnesses when their evidence was offered, because no nolle prosequi as to them was entered, the objection comes too late after verdict.
    3. The verdict was warranted by the evidence.
    July 13, 1891.
    Criminal law. Riot. Witness. Evidence. Practice. Yerdict. Before Judge Hines. Rockdale superior court. September adjourned term, 1890.
   Judgment affirmed.

Will. Sims, Joe Lamar, William Glenn aud Turner Sims were indicted for riot, and a verdict of guilty was rendered against all of them. They all moved for a new trial, and a new trial was granted as to Lamar aud Glenn, but refused Will, and Turner Sims, and these two excepted. In addition to the grounds that the verdict was contrary to law, evidence, etc., it was alleged that a new trial should be granted because the solicitor-general stated to the court and jury that he would not ask for a conviction of Lamar and Glenn, before the .State closed its evidence and before defendants introduced their evidence, and the case was not presented to the jury ou the part of Lamar and Glenn — neither the evidence for them nor argument of counsel; also that an order should have been taken discharging Glenn and Lamar, or a verdict of not guilty, by the solicitor, before they were sworn as witnesses, and as the case proceeded to trial with the idea that they were out of it, aud the verdict was rendered finding them all guilty, and a new trial had been granted Glenn, a new trial should, be granted Will, and Turner Sims; and that there was a verdict finding Glenn guilty,-when it was announced that a verdict of guilty would not be asked against him and Lamar, and a new trial had been granted Glenn, and the verdict shows that had the jury not found all the defendants guilty none of them would have been found guilty.

Glenn and Lamar were sworn as witnesses for the State. Glenn testified that he heard Lamar said he would cut Glenn’s step-boy’s head off; he overtook Lamar and asked him what he had been saying; Lamar struck him, and they got to fighting; he got Lamar down, and then Turner Sims jumped on Glenn, and while they were down, either Turner or Will. Sims cut him twice; he knocked Turner down with a baseball bat, and Turner was trying to use a piece of rail-Lamar testified that Mathew Sims and Will Glenn overtook him; Mathew Sims caught the buggy-lines and Glenn the buggy-wheel ; Mathew Sims threw a bottle at him, and he got out of the buggy, and Glenn got him down and was on him ; he was in the buggy with Turner Sims, and Turner tried to pull Will. Gleun off of him ; Will, took a base-ball bat and knocked Turner down with it; some of them had tried to stop Glenn, but could not; and Will. Sims did nothing but try to stop it. Mathew Sims also testified that Will. Glenn overtook Lamar and they got into a fight; Will. got. Lamar down and was on him, and Turner Sims was cursing and trying to hit Glenn, and Will. Sims ran in where Glenn was and struck with something, aud after the fight was over Glenn was cut; witness did not catch Lamar’s buggy-lines but threw a bottle at Lamar when he was in the buggy; Lamar and Turner Sims had started home aud had gone about three hundred yards when Glenn overtook them.

Will, and Turner Sims made statements to the effect that they were simply trying to stop the fight between the others, and there was some evidence tending to sustain these statements. One Shi, who also seems to have taken part in the affair, testified that he -was trying to part Lamar and Glenn, and Turner Sims was trying to hit Glenn with a fence-rail, and Will. Sims ran by and cut Glenn, and they were all talking loud and cursing.

G. W. Gleaton, for plaintiffs in error.

E. Womack, solicitor-general, contra.  