¶1The general rule is familiar, that a defendant in an indictment may be convicted of any offence which is well charged therein, and is proved, although the whole charge contained in the indictment is not proved. But the defendant contends that the present case falls within an exception to the rule, and that no conviction for assault and battery only can be had on an indictment which charges, in one count, a riot and an assault and battery committed riotously. The decision in Rex v. Heaps, 2 Salk. 593, S. C. nom. Rex v. Sudbury, 1 Ld. Raym. 484, is chiefly relied on to support this view; and it certainly has been often considered by text-writers as going to this extent, though, on examination, it will be seen that it does not necessarily do so. The indictment in that case charged several with riot and a riotous assault, and the jury found a general verdict of guilty against two, and acquitted the rest. On a motion in arrest of judgment, it was considered clear that the two defendants who were convicted could not be held guilty of a riot, since the others were acquitted, and two persons are not enough to make a riot; and being thus, in contemplation of law, discharged of the riot, it was held that no judgment upon the general verdict of the jury could be entered against them for the assault and battery. No special verdict of guilty of the assault and battery was returned, and the question did not arise whether such a special verdict could have been sustained.
¶2In principle, there is no good reason for taking this case out of the general rule, more than other cases where there is a charge of assault and battery, with circumstances of aggravation which the evidence fails to prove. The whole current of modern decisions is opposed to establishing such an exception; and the decision in Shouse v. Commonwealth, 5 Barr, 83, cited with approbation in Dinkey v. Commonwealth, 17 Penn. St. 126, is directly in point. See 1 Bennett & Heard’s Lead. Cas. 551-554; 2 Ib. 38.
¶3Exceptions overruled.