I. The accused were not entitled to demand separate trials. Hone of the acts charged amounted to felony, at common law, being for a riot and for a riotous assault and battery, and there being no allegation that the intent was felonious, or that such weapons were used as would constitute the offense of felony. At common law the offense charged was merely a misdemeanor, as appears to be well settled by the authorities cited on the argument. It is not made felony by statute. The act referred to by the counsel for the accused (3 R. S. 5th ed. 970, § 24) does not reach this case. It applies to persons who shall assault, &c., “ with knife, dirk, dagger, or other sharp, dangerous weapon.” In this indictment none of the above mentioned weapons are specifically named; nor is there any allegation that the weapons used were either sharp or dangerous. The offense being therefore only a misdemeanor, it was entirely in the discretion of the court to determine whether the defendants should be tried jointly or separately. (3 R. S. 1028, § 22.) And being so, the decision was final.
II. The district-attorney was not bound to elect any one count upon which to proceed to trial; and the court properly overruled the motion made to compel him to do so. It is apparent from the tenor of the whole indictment that each count relates to the same transaction, and they are only varied for the purpose of meeting the proofs to be given. In such case, even on a charge of felony, the court will not compel the prosecutor to elect. And in cases of misdemeanor, several counts may be included, each charging distinct and independent offenses. The defendant may be tried upon all and convicted of all or any of them, according to the proof. *612(Kane v. The People, 8 Wend. 203.) These principles apply to such a motion, made after the testimony is closed; and even in cases where it is proper for the defendant to apply for such election, the application is addressed to the discretion of the court, and the exercise of it is not reviewable on a writ of error. (People v. Baker, 3 Hill, 159, and cases cited on points.)
III. Hiscock had testified concerning the transaction on the evening in question. He had spoken of seeing three of the defendants, and was detailing the occurrence, and the question which was put to him: “ What was said and done there ?” being objected to by the defendants’ counsel, the district-attorney proposed to follow it up with proof that all the defendants were present. The question then was merely as tp the order of proof, and was matter in the discretion of the court, and its decision final. “ In proving the guilt of defendants (in case of riot) the regular and orderly way is first to prove the combination,” and then show what was done in pursuance of the unlawful design; but this is not an imperative rule. It rests in the discretion of the judge to prescribe the order of proofs in each particular case, and, if he deems it expedient, under the special circumstances, to permit the prosecution first to prove the riotous acts, it will be only after the whole case on the part of the government has been openly stated, and the prosecution has undertaken to connect the defendants with the acts done. But it will be sufficient to fix the guilt of any defendant if it be proven that he joined himself to the others, after the riot began, or encouraged them by words, signs or gestures, or otherwise took part in their proceedings. (3 Greenl. on Ev. § 221. 1 Hale's Pleas of the Crown, 462, 463. 2 Campbell, 358, 370. 4 Burr. 2073.)
IV. As to the portion of the charge first excepted to, it is sufficient to say that whether correct or not, it could not have influenced the verdict rendered against the defendants for an assault and battery; and it is well settled *613that even if the charge, or other decision of the court below, be erroneous, still if the court above can see clearly that it could not prejudice the rights of the party objecting to it, the verdict will not be set aside ; and this rule applies as well to a bill of exceptions or writ of error, as to a case. (People v. Scott, 6 Mich. Rep. 289. Hayden v. Palmer, 2 Hill, 205. Smith v. Kerr, 1 Barb. 155. Dole v. Lyon, 10 John. 47. Shorter v. People, 2 Comst. 193, 202.) And the second portion of the charge excepted to, “that if a crowd of three or more persons engaged in the attack on Mr. Hiscock, with the preconcerted intent to commit an assault and battery upon him, and did accomplish the unlawful act, and the defendants, or any of them, participated in that unlawful proceeding, then they were guilty of the crime of riot,” was correct, within all the authorities -defining what constitutes a riot. And besides, as the verdict was for assa.ult and battery only, and was not in any way influenced by the charge, under the rule above stated, error will not lie, even though, it were erroneous. The same rule applies to the refusal to charge-that there was no evidence in the cause that would authorize a conviction for riot, under the third count of the indictment. There being no conviction for a riot, the' defendants suffered no injury from the refusal.
. V. The request to charge, “that if guilty of assault and battery, only such are guilty as participated in the assault and battery, upon a person unknown, as charged in the indictment; and that the defendants, or either of them, could not be convicted of assault and battery on Hiscock or Farnham or Mulholland, because they are not mentioned in that count, and because other indictments found against the defendants, for that offense, had super-ceded the one on which the defendants were on trial,” was made after proof had been given that such assaults and batteries had been committed upon. Hiscock, Farnham or Mulholland. It did not appear, on the trial, that *614either of them were made known to the grand jury; nor but that some or one of them were, or was, the person to the grand jury unknown, and for the assault of whom the indictment was found. It can be no defense to a person indicted for an assault upon a person unknown, that the person assaulted becomes known prior to or at the time of the trial; but. it must appear that the.grand jury knew such person at the time they found the indictment, and that it was found for an assault upon some other person, who was not made known to them. (Nookes v. The People, 25 N. Y. Rep. 380, 389, per Davis, J.) And the defendants, by allowing evidence of the assault on Hiscock without objection for variance, assumed that he was the person unknown. (Beekman v. Bond, 19 Wend. 444. People v. Cook, 4 Seld. 67. Jencks v. Smith, 1 Comst. 90.) And there was nothing to show that any other indictments had been found than the one then on trial.
_ Two grounds are relied upon in support of the motion in arrest of judgment; first, that it was irregular to'convict three of the defendants of an assault and battery, and three-of them of an assault only, for the reason that they were jointly indicted ; and, secondly, that the verdict was void for uncertainty, and could not be pleaded in bar of a future indictment against the defendants, or either of them, for an assault charged to have been committed upon any particular person. It is not unusual to convict persons who are jointly indicted, of different grades of the offense charged, or to convict some of them and acquit others, except in cases where the conviction is of an offense, to constitute which, all must have participated. (1 Archb. Crim. Pl. 97. Whart. Crim. Law, §§ 434, 435. 2 Burr. 980-4. 5 Barr, 83.) And in this case, the j ury h aving found the defendants not guilty of the riot, a concert of action between them is not to be presumed, any further than the jury have found by their verdict; and each is severally liable for his individual acts. And if the defendants, *615or any of them, should be indicted for an assault and battery committed upon Hiscock, Farnham or Mulholland, there would be no difficulty in pleading the indictment and conviction in this case in bar; and on the trial of such issue, it would be competent for the defendants to show that on the former trial, proof of an assault upon such person was given, and that it was the assault for which the jury found their verdict; and such proof would entitle the defendants to an acquittal.
[Onondaga General Term, June 28, 1864.The judgment should be affirmed.
Morgan, Bacon and Foster, Justices.]