This is an appeal by the State on a judgment upon a special verdict on an indictment for an affray. The defendant Charlie Dockery and one Lovin were parties to an affray in which a deadly weapon was used by the defendant Lovin.
It appears from the special verdict that the defendant having sworn out a warrant against Lovin for the assault upon him with a pistol, said Lovin waived an examination and was bound over to the Superior Court; that the solicitor sent a bill against both Lovin and 'Dockery for an affray, which was returned a true bill, to which the defendant Dockery pleaded former conviction. The special verdict further found that at the instance of the father of the defendant Dockery, William Killian, who was an uncle of the defendant, applied to a justice of the peace to know if he could not “fix the matter” so that Dockery would not have to appear in the Superior Court; said justice said he could so fix it, and directed Killian and his nephew, the defendant Dockery, to appear the following Monday, at which time, upon an affidavit signed by Killian, the warrant was issued, but not given to any officer, and the defendant, without the examination of any witnesses except said uncle, was fined $2.50.
In the recent case, S. v. Lancaster, 169 N. C., 285, the Court said: “In S. v. Coppersmith, 88 N. C., 614, it was held that an affray is cognizable in the Superior Court as to both defendants where it appeared that a deadly weapon was used by either. This has been cited and approved in S. v. Albertson, 113 N. C., 634. To same effect, S. v. Ray, 89 N. C., 587, and cases cited to both cases in the Anno. Ed. If Parker, not having used a deadly weapon, had been convicted or acquitted before a justice of the peace, this would have been a full defense as to him. S. v. Fagg, 125 N. C., 609.”
The charge of an affray, though one of the parties did not use a deadly weapon, confers jurisdiction as to both defendants; but if the one who has not used a deadly weapon has been already tried and convicted, or acquitted, before a justice, the plea of former conviction would be good. The sole question, therefore, is whether the defendant Dockery has been tried in the court of the justice of the peace — for the jury finds that he did not use a deadly weapon — or was there such collusion that the proceeding was a nullity? We think the court should have held the proceeding before the justice invalid.
According to the special verdict, the warrant was issued at the instance of the father and uncle of the defendant, and the defendant appeared without the warrant having been served. He could have waived service, *830and be could also bave waived tbe fact tbat it does not appear tbat tbe warrant, tbougb signed by Killian, was sworn to. It was not necessarily collusion because tbe warrant was issued at tbe instance o£ bis father and uncle, tbougb it was certainly not a seemly proceeding. But tbe verdict finds further that tbe warrant was issued upon an agreement by tbe justice tbat be would “fix tbe matter so tbat tbe defendant would not bave to go before tbe Superior Court,” and further tbat there was no examination of witnesses except said uncle, who bad procured this arrangement; and tbe justice, without other evidence, and, therefore, without any real trial, but in pursuance of tbe agreement practically with tbe defendant himself to keep him out of tbe Superior Court, fined tbe defendant $2.50. Such proceedings were collusive, and cannot bave tbe effect of a legal conviction tbat would bar further proceedings in tbe Superior Court.
Legal proceedings must be, as Caesar would bave bis wife, “not only without wrong, but above suspicion.” Tbe judgment here was by agreement and for tbe benefit of tbe defendant, and was rendered without proper evidence. It cannot be treated as possessing any validity in tbe eye of tbe law. Lovin and other witnesses should bave been summoned so 'the justice could bave beard both sides.
S. v. Cale, 150 N. C., 805, relied on by tbe defendant, cannot protect him. In tbat case it is true tbat the Court held tbat a defect in tbe warrant or arrest or in tbe deputization of a special officer was waived by tbe appearance in court of tbe defendant. But there tbe affidavit was made by a third party; several eye-witnesses were summoned and examined at tbe trial, and tbe assaulted party and bis brothers, who were eye-witnesses, were notified of tbe time of trial, and tbe court waited for their appearance, tbougb they did not attend tbe trial. Tbe Court held on those facts tbat tbougb the defendant himself asked for tbe warrant to issue, it was issued in fact upon tbe affidavit of a third party, and tbe eye-witnesses were summoned and examined, and tbe opposite party to tbe affray and bis witnesses were summoned. Tbe Court held thereupon tbat there was a valid trial and disposition of tbe cause by tbe justice, and tbat there was no evidence of collusion.
Upon tbe facts found in tbe special verdict there is evidence of an agreement and collusion between tbe defendant Dockery and bis uncle and father on one band and tbe justice on tbe other; no witnesses were examined except defendant’s uncle, who bad made tbe agreement with tbe justice; and the judgment rendered was collusive and a nullity. Tbe court should bave so held and rendered judgment accordingly. When tbe case goes back judgment should be rendered against tbe defendant on tbe plea of former conviction upon tbe special verdict. S. v. Moore, 136 N. C., 581.
Reversed.