Bleckley, Judge.
1. An indictment against many is good against any one of them, without proof of concert or conspiracy, if the offense be such as that one could commit it alone. Assault with intent to murder. is such an offense. Evidence was admissible that the prisoner then on trial threw a rock or a brickbat, or both. The doubt of the witness as to the ehai’acter of the missiles was no reason for excluding the evidence. The indictment covered both rocks and pieces of brick. The witness was within it, though he could not be certain whether there was a rock and a brickbat, or whether there were two rocks, or two brickbats, thrown.
2. The indictment treated each defendant as a principal in the first degree, and there is nothing in the nature of the charge, or in the weapons used, or in' the manner of using them, to render that relation impracticable. In alleging that each defendant threw rocks and pieces of brick, the indictment means that each threw with his own hands, or else by the hands of others, under such circumstances as would make the act of each the act of all. 36 Ga., 222.
3. On any possible view of the offense under the evidence, it was not a simple assault. Of course, then, the refusal of the court to charge on that grade of violence was not error. 56 Ga., 408.
4. The sentence might have gone up to ten years, but the humane tenderness of the judge restricted it to five years. The-complaint of cruelty and excess is without the shadow of foundation, so far as we can see. 47 Ga., 297.
5. After the sentence was orally pronounced in the presence of the prisoner and his counsel, the court, in writing it out and having it recorded, mitigated it, so as to make the term of imprisonment and labor in the penitentiary shorter than that designated in the oral sentence. This was done in the prisoner’s absence; but it was a boon to him. Compare 28 Ga., 235; 18 Wall., 163.
6. The ministerial officer, whether sheriff or jailer, had [288]*288no right to send the prisoner away, before his sentence was written out and recorded, though he was demanded by the keeper of the penitentiary; but the court was in no way implicated in the irregularity, and the officer’s misconduct or inadvertance furnished no reason for not mitigating the sentence and having it spread upon the minutes of the court.
Eor fear of misapprehension, we will add, that it is not a safe practice to take action in a criminal case without the accused and his counsel are both present. Even when a benefit is intended, the effect may not be altogether’beneficent ; and no other eyes are so keen in discerning possible detriment, as those, of the man who is to undergo punishment, and the counsel who bears upon his conscience the weight of his client’s case.
Judgment affirmed.
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