¶1 (dissenting) : John Lollis, Walter Mahaffey, C. F. Whitmire, and Zera Durham were indicted for robbery, grand larceny, and assault and battery with intent to kill. Only John Lollis and Walter Mahaffey were tried. There is evidence tending to show that these four people were riding together in an automobile, and had spent the evening together. They had several “blowouts.” These were repaired by John Lollis and Walter Mahaffey. When they came near the house of L. W. Lollis, a kinsman of John Lollis, about half past ten at night, they had another blowout. Whitmire and the woman called “the Durham woman” were sent up to the house of L. W. Lollis for help. L. W. Lollis started down to the stranded car, but before he got there he was assaulted and robbed by two men.' L. W. Lollis and his son, Floyd Lollis, testified that the men were John Lollis and C. S. Whitmire. “The Durham woman” testified that Whitmire went with her to call L. W. Lollis and went back with her to the car; that John Lollis and Walter Mahaffey went back to meet L. W. Lollis, while she and Whitmire sat in the car; that, when they heard L. W- Lollis’ cry for help, she and Whitmire rode off with the car and went to the house of a Mr. Bennett, where she was staying. Mr. Ben- ■ nett owned the car.
¶2 The question in this appeal is the insufficiency of testimony to convict Walter Mahaffey. The question in this case is one of no evidence, which, of course, is a question of law. The jury convicted John Lollis and Walter Mahaffey of grand larceny and simple assault and battery. Walter Mahaffey appealed. The State’s witnesses, L. W. Lollis, the prosecuting witness, and his son, Floyd Lollis, *317 said that the two who made the assault were John Lollis and C. S. Whitmire. While a party to any proceeding in our Courts may not contradict (that is a term of art) its own witness, it may show the fact to be otherwise. The State had the right to show that as a matter of1 fact the man who was with John Lollis was Walter Mahaffey, and not C. S. Whitmire. If the four had been on trial, the State might have asked for the conviction of the four. When anything was to be done, the alignment was John Lollis and Walter Mahaffey in fixing the car when it needed fixing. When L. W. Lollis was to be brought down to the car, Whitmire and the Durham woman were sent off to get him, and John Lollis and Walter Mahaffey stayed with the car. After the robbery it is not denied, even by the appellant, that Whit-mire and the Durham woman went off with the car, and Walter Mahaffey and John Lollis walked off together. Walter Mahaffey was at the car when L. W. Lollis was sent for. L. W. Lollis was attacked before he reached the car, and made outcry that brought his son to him to his assistance. Walter Mahaffey did not go off with the car, but with the man who unquestionably made the actual assault. If it was necessary to be so exact, then who was the man with him? That was a question for the jury, and the evidence in my judgment was sufficient.