AFFRAY. The fighting of two or more persons in a public place to the terror of the people.
Mere words cannot amount to an affray. Any person is justified in using force to part the combatants ; 1 Cr. M. & R. 757.
It differs from a riot in not being premed itated ; for if any persons meet together upon any lawful or innocent occasion, and happen on a sudden to engage in fighting, they are not guilty of a riot, but an affray only ; and in that case none are guilty ex cept those actually engaged in it; 4 Bla. Com. 146; 1 Russell, Cr. 271; 2 Bish. Cr. L. 1150.
Fighting in a private place is only an as sault; 1 C. M. & R. 757; 1 Cox, Cr. Cas. 177; it must be in a public place ; Gamble v. State, 113 Ga. 701, 39 S. E. 301; and the indictment need not describe it ; State v. Baker, 83 N. C. 649 ; State v. Heflin, 8 Huinph. (Tenn.) 84 ; State v. Sumner, 5 Strobh. (S. C.) 53; and that fact must be avowed ; State v. Woody, 47 N. C. 335. But it will be an affray if commenced in a private place and continued in a public one or if the disturb ance is so continuous as not to be distin guishable; State v. Billings, 72 Mo. 662 ; or
if continued in public after pursuit; Wilson v. State, 3 Heisk. (Tenn.) 278.
Going about armed with unusual or deadly weapons is an affray, though there is no actual violence or fighting; Hawk. P. C. b. 1, c. 28, §• 1; State v. Huntly, 25 N. C. 418, 40 Am. Dec. 416; and the statute of North ampton, 2 Edw. III. c. 3, 4 Bla. Com. 149, forbidding it was declaratory of the com mon law ; State v. Huntly, 25 N. C. 418, 40 Am. Dec. 416. For constituting this offense a gun is an unusual weapon ; id. See Rum The fighting of two persons in the pres ence of seven others was held an affray, the presence of the seven constituting the place a public one ; State v. Fritz, 133 N. C. 725, 45 S. E. 957.