¶1An affray, as defined at common law, is the fighting of two or more persons in a public place, to the terror of the people. It is distinguished from an assault, or an assault and battery, because of the place at which it is committed, and the number engaged in it. It includes, of necessity, an assault and battery, and the gist of the offense at common law was its publicity. It is believed to have been the uniform practice in this State, when two or more are indicted for the offense, to allow the conviction of one and the acquittal of others. From this practice we are unwilling to depart, especially as it is supported by the adjudication of other States. State v. Allen, *6414 Hawks, N. C. 356 ; Cash v. State, 2 Tenn. 198. There may be a fighting in a public place, in which the one party was the aggressor and the other only employed the force necessary to defend himself. This may not be developed until all the evidence is submitted to the jury, and we can see no good reason why, if the one is shown innocent and the other guilty, there should not be the verdict and judgment the evidence requires.
¶2As we have said, an affray necessarily involves an assault and battery. Under our statutes the two offenses are visited with the same punishment. The form of indictment for an affray is that the accused “did fight together in a public place,’’specifying with more certainty the particulars of the offense than did a common indictment, in which the weight of the charge rested on the averment “did make an affray.” • The indictment thus framed expresses substantially that an assault and battery was committed, aggravated only by the publicity of the place. As a general rule, when an accusation includes an offense of inferior degree, there may be an acquittal of the higher and a conviction of the less offense. The rule may well be applied when the evidence shows an offense committed by one, included iu the offense with which he is charged, each of the same degree. Thereby the defendant is not oppressed, nor misled as to the evidence which may be introduced against him, nor deprived of any advantage to which the law entitles him. There was no error in the instruction of the court that the jury could find the defendant guilty of an assault or an assault and battery, on the indictment, if the facts warranted it.
¶3The judgment is affirmed.