STONE, J.
The question raised on the drawing and organization of the grand jury, was settled adversely to the appellant, in the cases of Marler v. The State, and Creamer v. The State, at the present term.—68 Ala. 580; ante, p.
2. An affray is the fighting of two or more persons in a public place, to the terror of the people.—4 Blackst. Com. 145 ; Clark’s Manual, § 1467; 2 Bish. Cr. Law, § 1; 1 Ib. § 535. The qualities that distinguish an affray from an assault and battery are, that two or more persons must be engaged in the same combat, and the place must be public. The controlling thought of the defense in this case is, that, as all the persons named in this indictment fought on one side, against a fourth person not indicted, they can not be found guilty under this indictment. It is a sufficient answer to this objection, that persons indicted for an affray, may be convicted of an assault and battery; the latter offense being necessarily included in the former.—McClellan v. The State, 53 Ala. 640. Each of the charges asked conceded the fighting of two or more persons in one and the same rencontre, but claimed that, if it was not .shown that some of the defendants fought against each other, then they must be acquitted. If it be conceded that, to constitute an affray, the defendants must sustain antagonistic relations to each other in the combat, these charges were rightly refused, because they asked too much. The most that could be claimed, on the hypothesis of the argument, was, that the jury could not convict of an affray. Eor the same reason, the Circuit Court did not err in refusing to exclude the testimony of the witness Holland, on whom the injury is charged to have been committed.
3. But we are not prepared to admit the soundness of the •argument. The offense is made up of the number of the offenders engaged — two or more — the publicity of the place, and the presumed terror of the people, caused by their fighting together in such place. All these elements co-exist, and all these effects are produced, whether the two or more combatants fight on opposing sides, or on the same side. A rescue, or attempted rescue, by violence, of a person legally arrested, and in the custody of an officer of the law, if perpetrated by two or more acting together, in a public place, is an affray.—2 Bish. Cr. Law, § 5, and authorities cited.
Affirmed.