
    STATE v. FRONTIS DIGGS et al.
    (Filed 27 April, 1921.)
    Criminal Daw — Conspiracy—Indictment—Evidence—Others Not Named— Instructions — Appeal and Error.
    Where the bill of indictment charges a conspiracy resulting in the commission of a crime by persons named in the bill and others, and there is evidence thereof not only as to those named but also as to others, a charge that it takes more than one person to make a conspiracy, but confining the definition of conspiracy to a conviction of more than one of the parties defendant, is reversible error, in leaving out of consideration the evidence that one of those named in the bill may have conspired with others not named therein.
    Appeal by defendants from McElroy, J., at September Term, 1920, OÍ ÁNSON.
    Criminal prosecution, tried upon an indictment charging the defendants (fourteen in number) with conspiring, confederating and agreeing among themselves and with others to unlawfully and feloniously assault and murder one W. H. Watkins.
    
      Tbe 'evidence, tending to sbow an unlawful conspiracy among tbe defendants, was equally as strong in establishing tbat others,' not named in tbe bill, participated in what took place and aided and abetted tbe present defendants or some of them.
    Upon tbe question as to what verdict might be rendered, bis Honor charged tbe jury as follows: “Gentlemen of tbe jury, you may return a verdict of guilty as to any two or more of tbe defendants or you may return a verdict of not guilty as to one or all of tbe defendants. You cannot find one alone guilty because it is necessary tbat at least two combine in order to form a conspiracy. So your verdict may be guilty as to any two or more or all, or not guilty as to one or more or all, as you may find and are satisfied from tbe evidence.” Defendants excepted.'
    Tbe court directed a verdict of not guilty as to seven of tbe defendants; two were acquitted by the jury, and tbe remaining five, to wit, Frontis Diggs, Alex. Douglass, Watt, Frank and Ben Eobinson, were' convicted, and from tbe judgments pronounced they appealed.
    
      Attorney-General Manning and Assistant Attorney-General Nash for the State.
    
    
      McLendon & Covington and R. B. Redwine for defendants.
    
   Stacy, <7.

Tbe defendants were tried jointly, and rightly so. But we think bis Honor erred in charging tbe jury tbat a verdict of guilty could not be returned against one of tbe defendants singly and tbat all should be acquitted unless as many as two were convicted. It is true the crime of conspiracy cannot be committed by one person alone. It requires tbe confederation of at least two and, of course, it may include more. S. v. Christianbury, 44 N. C., 46; S. v. Younger, 12 N. C., 357. But tbe bill charged tbat tbe defendants conspired among themselyes and with others. Hence, tbe jury might have found tbat only one of tbe defendants participated in tbe alleged offense with another or others not on trial. Tbe instruction would have been correct bad there been no evidence tending to incriminate others along with the present defendants, or bad tbe indictment not been cum milltis aliis. S. v. Tom, 13 N. C., 569. Under tbe instant circumstances, however, we think tbe charge, as given, was prejudicial to tbe defendants, entitling them to a new trial.

There are other exceptions, appearing on tbe record, worthy of consideration, but as tbe case goes back for another bearing, and as they may not occur again, we refrain from further comment.

New trial.  