#### STATE v. WALTER MAY.

(Filed 29 September, 1910.)

1. Affray — Verdict Directing — Evidence.

Upon a trial for an affray it is not error for tbe trial judge to refuse, upon motion of tbe defendant first named in tbe indictment, to direct a verdict in bis favor upon tbe State’s having introduced one witness and rested.

2. Affray — Evidence—Co-defendant—Rebuttal.

After tbe State bas introduced evidence and rested its case against tbe first defendant named in a bill of indictment for an affray, and bis co-defendant bas testified to matters tending to incriminate bim, be bas tbe same right to introduce evidence in rebuttal as if bis co-defendant bad been a State’s witness against him.

*601Appeal from Peebles, J., at August Term, 1910, of FkaNK-LIN.

Tbe facts are stated in tbe opinion.

Attorney-General for State.

W. M. Person and W. H. Yarborough, Jr., for defendant.

Clark, C. J.

This was an indictment for an affray, and tbe defendant May alone was found guilty, and appeals.

Tbe State introduced one witness and rested. Tbe defendant May, whose name appeared first in tbe bill of indictment, without introducing evidence, moved tbe court to direct a verdict of not guilty. This was refused, tbe court saying that tbe evidence was not all in. In this there was no error.

Tbe defendant Jackson then produced evidence, much of which tended to incriminate May. When Jackson rested, tbe defendant May offered himself and others as witnesses in rebuttal of tbe evidence offered for Jackson. Tbe court was of an opinion that be bad no right to do so, and refused to allow said May to testify himself or put on other witnesses. In charging tbe jury tbe court said, “The State further contends that you should believe that part of tbe evidence offered by Jackson in which tbe witnesses testified that May struck Jackson with bis stick willingly, and that you should be satisfied beyond reasonable doubt from that evidence that tbe defendant May is guilty,” and further, “If you find from all tbe evidence, beyond a reasonable doubt, that either or both of tbe prisoners are guilty, you should say so.”

If tbe evidence offered by Jackson bad been used only to acquit him tbe defendant May would have no ground to complain. But Jackson’s evidence was competent against May, and was so used by tbe prosecution and was submitted to tbe jury by tbe judge to be considered against him.

It was therefore error not to permit May to reply to this evidence. He bad not been “confronted” with these witnesses. It is true that as to new matter brought out by May, tbe defendant Jackson in turn would have been entitled to a reply. But this anomaly is due to tbe fact that tbe testimony of tbe defendants in an affray is usually hostile to each other. Indeed, in trials *602for an affray, the solicitor usually relies upon the testimony of tbe defendants to convict each other.

The conduct of a trial is largely left to the discretion of the presiding judge. But when the State relied upon the evidence offered by the defendant Jackson to convict May, the latter had a right to offer evidence in reply to evidence with which he had not been confronted when the State rested. When the defendant May rested, no evidence which he cared to impeach had been introduced against him, and there was nothing which he cared to contradict. Hence he rested and waited for further evidence. “Where, on the trial of four defendants indicted for an affray, three of them testified, and the fourth, their antagonist, was called in his own behalf, the other defendants had the same right to impeach him on cross-examination as if he had been a witness instead of a co-defendant.” S. v. Goff, 117 N. C., 755.

Error.