Assuming for the sake of argument that the trial judge had authority to vacate his order granting a nisi on the extraordinary motion for a new trial, and to do so *Page 411 without affording movant a hearing on the question, I am of the opinion that the judge erred in refusing to grant a rule nisi "as a matter of law." The judge's order denying the rule nisi is as follows: "The defendant was convicted of the offense of riot, his motion for a new trial was denied and the Court of Appeals affirmed. Loomis v. State, 51 S.E.2d 33. An extraordinary motion was filed by the defendant. The indictment charges, `Homer L. Loomis Jr., Emory C. Burke with the offense of riot for that said accused. . ., did jointly with J. R. Childers and other persons whose names are to the grand jurors unknown.' The defendant contends that this indictment was not a true bill of indictment in that `other persons' referred to therein, to-wit: Clarence H. Kight and Douglas (Red) Watson, two of the principal rioters, were in fact known to the grand jurors. That he was unaware of this at time of trial and therefore deprived of a defense he was entitled to and which, when established on subsequent trial, would demand his acquittal. Counsel for the defendant insists that the following is the true rule of law here applicable: `In an indictment the names of the persons injured, and of all others whose existence is legally essential to the charge, must be set forth, if known; it is, of course, material that they be precisely proved as laid, . ., and if the person be described as unknown, and if it be proved that he was known, the variance is fatal, and the prisoner will be acquitted.' Greenleaf on Law of Evidence (16th Ed.), Vol. 3, Section 22. He further contends that this rule has been approved of in Georgia in115 Ga. 255; 84 Ga. 466; 5 Ga. App. 496 and 4 Ga. App. 67. The defendant contends that the names of all principal rioters actually present and participating in the offense of riot are essential to a description of the offense in the indictment as to one who shared with them a common intent but was not present at the commission of the riot. It is also the defendant's contention that the materiality of the allegation of the indictment — viz., that the names of other alleged rioters were unknown to the grand jurors — depends, for the purposes of this motion, not on what appears on the face of the indictment, but on what the proofs show the facts to have been; and that since the proofs show that, of those persons named in the indictment, only one (Childers) was an actual present participant and that, therefore, proof of the actual *Page 412 presence of either Kight or Watson, or some other third person was necessary before a riot could have been found to have been committed, the proof, in consequence, showed that the allegation that the names of others (Kight and Watson, or others) were to the grand jurors unknown, — was a material allegation of the indictment. `The object of an indictment is fairly to inform accused of the charge against him, so as to enable him to prepare his defense and avail himself of his conviction or acquittal as a protection against further prosecution for the same cause; and to inform the court of the facts alleged so that it may decide whether they are sufficient to support a conviction, if one is to be had. 42 C. J. S., p. 835, no. 7(a). Where the name or other description of a victim of a crime or person other than accused connected therewith is not an essential part of the offense, the indictment need not name or otherwise describe such person; but where the identity of such a person forms a material part of the crime charged, the indictment should name or otherwise sufficiently describe him.' 42 C. J. S. no. 142 (a), p. 1048. `The name of a third person connected with the offense, but not essential to its description, need not be set out or alleged to be unknown, where the charge without such statement is sufficiently certain.' Id. In this State riot may be committed by any two persons and hence an indictment that charges a defendant together with one other named person with such an offense is sufficient and not subject to demurrer. See Martin v. State,115 Ga. 257, wherein the court said: `In the present case the indictment was good on its face, the offense being charged against two named persons.' Hence it was unnecessary, in so far as the validity of the indictment was concerned that the indictment include or make reference to others unknown. The defendant was fully apprised of the charge against him and it was not essential to the description of the offense that all parties connected therewith be set forth, the charge without such additional names being sufficiently certain. Since it is essential to the description of the offense of riot that at least two be included therein, it is necessary that at least two persons be jointly indicted, or one indicted charged with having committed the offense jointly with another. Had the defendant been so indicted alone and charged with having committed the offense of riot with another, *Page 413 to the grand jurors unknown, and the proof had disclosed that the name of such other person was in fact known to the grand jurors, this would constitute a variance between the allegations and the proof. However, in the present case there was no such variance. The proof showed that the defendant together with one other named person, J. R. Childers, did commit the offense of riot. While it is true that the proof further showed that Watson and Kight also participated therein, and, had it been further established that their names were in fact known to the grand jurors, although the indictment alleged that they were unknown, this would not of itself have constituted a fatal variance, since such allegation was not essential to a valid description of the offense of riot, and furthermore this fact of itself, if believed by the jury, would not have demanded an acquittal. A conspiracy must also be committed by at least two persons, and it has been held that `the names of the persons with whom the indicted person conspired are not descriptive of the offense.' 15 C. J. S. no. 82, page 1116, note 21. The mere proof that others are likewise equally guilty of the offense charged will not absolve the defendant on trial of his criminal responsibility for his participation. Therefore it is considered, ordered and adjudged that the extraordinary motion for a new trial, as amended, is without merit and the court declines to entertain said motion and refuses to grant a rulenisi. This decision is made as a matter of law, and not as a matter of the exercise of discretion. It is further ordered that all previous orders entered by the court in connection with said motion be, and the same are hereby revoked and vacated." This order shows that the judge did not exercise his discretion but that he in effect ruled as a matter of law that he was required to refuse the nisi without the exercise of his discretion. The majority opinion holds that the judge was correct in his ruling of law and in effect holds that if he had exercised his discretion he would have been authorized to deny the nisi. If the judge was wrong in his ruling on the law, and exercised no discretion, there is no other question before us to be decided. We are not called upon to examine a 510 page record to ascertain whether a denial of a nisi in the court's discretion would have been authorized if the court had made such a ruling. It is incumbent upon us now to rule on the judge's ruling of law. If he *Page 414 was wrong, we must say so now, and it will be a useless waste of time and energy to require the judge to certify the bill of exceptions so that the case may be brought back here at both trouble and expense, for the determination of the very same question we should now rule on. My conclusion is that the judge was wrong in not exercising a discretion on the question of granting a nisi, and that without further useless action, direction should be given that he exercise his judicial discretion on all the grounds of the extraordinary motion, there being two included therein, one, the contention that the indictment was fraudulent, and two, the alleged misconduct of prosecuting officials. I think the court erred in his ruling on the law for the following reasons: In Martin v. State,115 Ga. 255 (41 S.E. 576), the court stated, speaking of the indictment: "That it was subject to special demurrer for not naming the other persons referred to in the indictment as having participated in the riot, or not stating that their names were unknown, does not admit of question." The indictment in this case alleged that others were unknown so it was not subject to special demurrer and there was no waiver by a mere going to trial thereon. The error the judge fell into was this: an indictment for riot must allege at least two participants, but it possibly need not allege more than two even if there are more; but, if the indictment shows on its face that more than two persons participated in the riot, it is defective if it fails either to allege the names of the others referred to or to allege that their names are unknown to the grand jury. Even if it is true that it is permissible to allege the acts of only two persons in a charge of riot, when there are others involved, and that it is not necessary either to allege the names of the others or to allege that their names are unknown to the grand jury, if either of such unnecessary allegations is made it becomes a material part of the indictment and must be proved. It is idle to delve into the reasons for this truth. Fulford v. State, 50 Ga. 591,Smith v. State, 185 Ga. 365 (195 S.E. 144), SouthernExpress Co. v. State, 23 Ga. App. 67 (97 S.E. 550),Hightower v. State, 39 Ga. App. 674 (148 S.E. 300),Youngblood v. State, 40 Ga. App. 514 (150 S.E. 457), andKryder v. State, 75 Ga. App. 34 (41 S.E.2d 824). I express no opinion on the question whether the trial judge would or would not have abused his discretion *Page 415 if he had exercised it and denied a rule nisi or a motion for a new trial.