By the Court.
Lumpkin, J.
delivering the opinion.
[1.] The first exception in this case, applies to a considerable portion of the exculpatory testimony relied on by Tompkins. The Circuit Judge ruled out as evidence, all the acts and declarations of every other person implicated with Crockett in the alleged conspiracy to mob Tompkins, unless notice thereof was brought home to the defendant.
The assault and battery is not denied. Tompkins pleads that he was justified in striking Crockett. There is some conflict'of testimony as to what transpired when the, rencontre took place; and the doubt consequently is, who was culpable for forcing the fight ? Now if it could have been shown that there was a preconcerted plan — a common enterprise set on foot by Crockett and his crowd, to beat Tompkins, is not the proof admissible, as calculated to reflect light on the conduct of Crockett, when he overtook Tompkins ?
But a portion of the proof connects itself still closer with the transaction. When Crockett dismounted from the wagon,. McDaniel, who was riding with him, jumped out also and pulled off his coat; and Phillips, another one of the associates, held the reins of the horse. Do not these demonstrations, connected with the previous purpose, make McDaniel and Phillips parties to the combat ? Were they not actually present, aiding and abetting ?. And may we not — nay, must we not, suppose that Tompkins acted in the light of these surrounding circumstances, indicating the peril which beset him ?
*359We admit that the competency ef the testimony depends upon the fact of a concert and communication between th'e parties. If they embarked in a common enterprise, and they acted together in pursuance of this preconcerted agreement or understanding, Crockett is not only answerable for the acts of his confederates, but their acts and declarations are admissible, as a part of the res gestee. The whole conduct, acts and declarations of the one are evidence against any one of tito others. Crockett seeks the protection of the law for an injury inflicted on his person by Tompkins. If he and several others united to pursue Tompkins for the purpose of whipping him, and thus brought about the difficulty, the prosecutor comes with a poor grace to claim the vengeance of the law upon the head of his successful foe. The law was made to shield those from insult and abuse, who live in the peace of Grod and of the State, and not as an immunity to bullies and bravadoes.
It is not for us to decide, neither was it for the Court below, how far the connection between Crockett and the other parties is proved. This could only be done by their acts and declarations made in the presence of Crockett and in furtherance of the scheme which they had on foot. There was enough offered to make out such a prima facie case of concert and joint action as to make it proper to submit the whole to the Jury.
The general rule is this: in cases of crime perpetrated by several persons, when once the combination is established, the act or declaration of one accomplice in the prosecution of the enterprise, is considered the act of all, and is evidence against all. (Arch. Crim. Law, 6th 3d. note, by Waterman, p. 125-.’3.)
[2.] As to the testimony of Be vis, which was rejected, it went to show that Crockett assigned a false reason for going to the Cross Roads. He pretended that he was going there to fix up a certiorari; that being untrue, the Jury were left to infer that he thus went out of his way to seek an interview' with Tompkins. Cromwell, to justify the. murder of his Monarch, pretended that his tongue clave to the roof of his mouth *360while praying for his safety and deliverance. A girl, who gives as a reason why she is not in love, that her beau is no older than herself, is already a victim to the tender passion. So it has been with men and women, too, in all ages of the world.
[3.] The next point in this caséis this: Counsel for the defendant, by leave of the Court, had propounded some questions as to what transpired at the Cross Roads, but confessedly for the purpose of discrediting Crockett, and for none other. And the examination was sanctioned by' the Court, for this single object. The Solicitor General, at the commencement of his argument, announced his intention to ask a conviction of the defendant for the battery which occurred at the- grocery at the top of the hill. He was asked by the Court if he could produce authority to authorize such a practice, and the case of Wingard and Ham vs. The State, (13 Ga. Rep. 396) was cited in support of it. The discussion proceeded. His Honor, in the meantime, examining the case. Toward the close of the case, the Judge held that it was competent to convict Tomp- . kins for the last assault.
Did Wingard and Ham vs. The State, sanction this proceeding ? Two propositions were embraced in that decision. First. That playing and betting with cards, at any one of the games designated in the 11th section of the 10th division of the Penal Code, will constitute an offence; and that for every such game, unconnected with the other, an indictment will lie; yet, when all are perpetrated by the same person at the same time, they constitute but one offence. And Secondly. That the proof of guilt was not confined to the day mentioned in the indictment; but may extend to any period previous to the finding of the bill and within the statutory limit for prosecuting the offence.
[4.] - Were these batteries one in law, and could they be so treated ? no more so than if one of them had been made in the morning and the other in the evening. And upon the other ground, the State having elected to try the defendant for the first assault, could not convict him of another; and that, too, not only without abandoning the first, but what is infinitely more objectionable, without the defendants having been tried *361for the second. Had the prisoner been notified, before the proof closed, that the first assault was abandoned, and that the Jury would be called upon to give a verdict for the second, other testimony might and probably would have been adduced to that. How stands the matter then ? The Jury may have thought Tompkins not guilty in the first case, the only offence for which he was tried, and convicted him of another, for which he was not tried!
This judgment, we are clear, cannot be sustained.
As a' new trial will be awarded, we forbear to express any opinion upon the evidence.