The five defendants named in the indictment were tried in July, 1932, and Myers and Hilton were acquitted. S. v. Raper, 203 N. C., 489. These two conspired with neither of the others and neither *504of the others conspired with them. At a later term Raper, Wilson, and Brookshire were put on trial and the jury acquitted Brookshire and Wilson and convicted Raper, who is charged with conspiring only with his codefendants. The acquittal of two of the defendants left open the question of a conspiracy among the other three; but when two of these were acquitted none was left with whom Raper could have conspired. The principle is stated in S. v. Tom, 13 N. C., 569, in which Tom, a slave, and Donum, a slave, were indicted for a conspiracy to murder. In holding that the acquittal of one was the acquittal of the other the Court said: “The other question is, whether the acquittal of one of two persons charged nomincdim in the same indictment with a conspiracy, is an acquittal of the other. In this indictment six are charged. The case states that the evidence went only to a conspiracy between Tom and Donum, yet the jury found Tom guilty generally. That might well be done, though Donum were not guilty; because it is sufficient to show a conspiracy between Tom and any one of the others. If the case rested there, the judgment would be without difficulty affirmed; for this Court cannot grant a new trial, for the reason that the verdict is against evidence. But the court below instructed the jury that they might convict the prisoner, although they believed all the other persons, except Donum, to be not guilty, notwithstanding the previous acquittal of Donum upon the same indictment. The case is, therefore, upon the instructions given, the same as if Donum and the prisoner were the only defendants. . . . Now conspirators may be said to be coprincipals. The guilt of both must concur to constitute that of either; and it must consist of a joint act, and it makes one crime in both. As the trial of one need not precede that of the other, the trial of both ought to be concurrent. I think it more than probable that anciently such was the course. But, clearly, now it is otherwise. There are many precedents of the separate trial of persons indicted for offenses that could not be committed by less than two. Rex v. Sudbury, 1 Lord Raymond, 484; 8. c., 12 Mod., 262; Rex v. Kinnersly, 1 Str., 193; Rex v. Niccolls, 2 Str., 1227. It is too late now to question it. But it can never follow from those cases that where one of the persons, the establishment of whose guilt is essential to the conviction of the other, has been legally acquitted, the other does not thereby become discharged.” The judgment is reversed. The appellant will be discharged.
Reversed.