#### *The State*v. *Lewis M’Lendon et al.*

It is the well-settled practice of the Court that the Judge has no power to order the names of any of the defendants to be struck from an indictment; though he may, at his discretion, in furtherance of justice, or for the attainment of truth, separate the trial of the parties, and send the case of such as, in his opinion, there is no evidence to convict, to the Jury; so that, if acquitted, they may be examined for the others.

"Where the Court is of opinion that the Jury might very well have convicted a defendant on the evidence, his motion for a new trial will be refused.

*86
      *Before*Evans, J., *at Darlington, Fall Term,*1849.

The prosecutor, Elias Sansbury, proved that, as he was going home from Church, on foot, he heard a great noise behind him ; that Truett had passed him, and was about twenty yards ahead of him, when the noise began, and immediately got off his horse, and stood in the road; that Lewis M’Len-don came up, at half speed, on horseback, flourishing a stick. He rode up on the side of the prosecutor, raised his arm near enough to strike, and swore he could whip him. Kinnon came up behind Lewis; he did nothing. Lewis rode on his side some distance, flourishing his stick,'and cursing the prosecutor, who, to avoid him, got over the ditch on the roadside, and picked up a pole to defend himself; and, finally, when they got to the prosecutor’s field, he got over the fence, when they left him. He heard Kinnon say, after Lewis had been cursing and threatening him some time, “ Come along, Lewis,” or something to that effect. There had been some ill feeling of these parties towards the prosecutor, about an indictment for murder against them, or some of them.

After the evidence was closed, the defendant’s counsel moved to strike the names of Kinnon, M’Lendon and Truett out of the indictment. The Circuit Judge told him he had no power to do this; that, in a case where there was no evidence, and it was clear they had been joined to prevent their giving evidence, he would send the case to the jury, to decide on the guilt of such persons improperly joined, in order that they might, if acquitted, be examined as witnesses for the other defendant; but that he could not undertake to say, in this case, there was no ground for the prosecutor’s belief, that there was a concert between these parties; that Lewis M’Lendon was to beat him with the stick, and the others to assist, if necessary. The conduct of Truett, in dismounting as soon as he heard the others coming, might very justly lead to the conclusion of pre-concert. He did not understand the solicitor as assenting, but the contrary.

One Mixon, examined for defendant, said: He passed along the road at the time Lewis M’Lendon and Sansbury were quarreling. Could not say whether Lewis had a stick; Sansbury had a pole. Kinnon came up, and said to them, “ Hush, and go home and mind your business.” Lewis was ahead of the rest; witness passed on without stopping. It appeared that Sansbury had previously bound Lewis M’Len-don [and perhaps the others] to the peace, and. an attempt had been made to forfeit the recognizance. To effect which, Sansbury had made an affidavit of the assault charged in this indictment, but it did not vary materially from his evidence on the trial.

The Jury were instructed, that, if they believed from the *87evidence, that Lewis M’Lendon raised his stick with an apparent intention to strike, and near enough to strike the, prosecutor, they should find him guilty; arid, if they believed that the other defendants had had a previous understanding with him, and were acting in concert with him, then they might find them guilty also. They found Lewis M’Lendon guilty, and acquitted the others.'

The defendant, Lewis M’Lendon, who was alone found “ Guilty,” moved the Court of Appeals for a new trial, on the following grounds:

1. Because, there being no evidence to charge the defendants, Kinnon, M’Lendon and Truett, and the prosecutor expressly declaring that they neither did - nor said anything to him, the motion to strike'out their names, not opposed by the State, should have been granted by his Honor, with a view to their being examined as witnesses.

2. Because, from the testimony of the prosecutor on. the trial, and on a previous investigation of the same matter, it does not appear that defendant was guilty of an assault.

• 3. Because the verdict of the 3 ury ,was contrary to law and evidence, the Whole transaction being nothing more than *a war of words.*

*Dargan,*for the motion.

*M’lver, Solicitor,*contra.

*Curia, per*Evans, J.

It is the well-settled practice of the Court, that the Judge has no power toordérthe names of any of the defendants to be struck from the indictment. Such a power would substitute the Judge for the Jury in deciding a question of evidence. The Judge may, at his discretion, separate the trial of the parties, and send the case of such as,, in his opinion, there is no evidence to convict, to the Jury, so that, if acquitted, they may - be examined for the others. This is in furtherance of justice, and to prevent what a dishonest prosecutor sometiines attempts, to suppress the truth by including all. who can contradict his statement in the indictment. No such application was made in this case, and, if it had been, the presiding Judge would have granted it, if to him it seemed necessary for the advancement of justice, or the attainment of truth. As to the merits of this defendant’s case, we think the Jury might very well have convicted him on the evidence, and the motion for a new trial is refused. •

Wardlaw, Frost, and Withers, JJ., concurred.

*Motion refused.*