Indictment for an affray. Plea,,not guilty. The. only evidence was, that when the-witness first discovered the' plaintiffs in error, «they were in close combat,..lying: on the *378ground, and he parted them.” The Circuit Court instructed the jury, that “when two persons are seen fighting together, and no person has seen the commencement, the presumption of law is, that they fought by- agreement; and it lies upon the defendants to prove, that they did not fight by agreement.” The verdict and judgment were for the state.

We consider the instruction of the Circuit Court to be incorrect. Innocent men are frequently engaged in these disagreeable contests, and no presumption of law is admissible that would frequently cause the innocentto.be punished; and contests of this nature, where no spectators are present at the commencement, may as likely take place by the aggression of one as by the agreement of both. The simple fact therefore, that two were seen fighting, is not, per se, a ground to presume that they fought by agreement.

The judgment is reversed, and the verdict set aside. Cause remanded, &c.