¶1delivered the opinion of the court.
¶2Press Malone and Jesse Malone were jointly indicted in the circuit court of Attalla county, and it was presented that they with guns, in and upon a large number of persons assembled for religious worship, to wit: Ike Roly, Bunch.Harmon, Bill Culpepper, and many other persons whose names are to the grand jurors unknown, feloniously an assault did make, and at and towards and against said persons did shoot said guns, etc.',-with intent, etc.
¶3At the September term, 1899, of the 'court, Press Malone being sick, a continuance of the case was had as to him, and Jesse Malone ivas put upon his trial, over his objection to being tried in the absence of his co-defendant, which he claims op-*814eratecl as a severance, and. which, he says the court cannot effect without the assent of the person tried.
¶4Tt was in evidence that Roby, Harmon, and Culpepper and many other persons were assembled at night under a tent for religious worship, and there was-evidence tending to show, and •sufficient, if credited, to sustain a conviction, that Jesse Malone rode up within about one hundred yards of the tent, and there tired a Winchester rifle towards it, knowing the congregation to be there assembled, and that the ball passed over the tent some twenty or thirty feet, by which the congregation was greatly disturbed and broken up. The jury found the defendant guilty of an assault.
¶5We see no error in putting Jesse upon trial in the absence of his co-defendant. At common law the trial court could sever the defendants for trial at its discretion. 1 Bishop’s New Cr. Pr., sec. 1018; Wall v. State, 51 Miss., 396. Our statute, code 1892, § 1417, changes the common law to- the extent of securing a severance to a defendant in cases of felony if seasonably applied for by him.
¶6It is insisted while the defendant may be guilty of disturbing religious worship, yet the evidence cannot support a conviction of an assault. If the shot fired by Malone had struck any one of the congregation, it would have constituted an assault and battery, and the firing of the gun directly over the congregation and with such nearness to their persons as to raise in their minds reasonable apprehension of danger of being struck or of being the object fired upon, comes, we think, within the definition of an assault. Others errors are assigned, but we find nothing upon the face of the record to support them.
¶7The action of the court is affirmed.