
    The State vs. Theodore Parish.
    The defendant, with three others, was convicted of an affray for heating in public one M. During the affray the prosecutrix went up to protect M., who was her son, and defendant struck her: — Meld, that the conviction for the affray was no bar to this indictment for an assault and battery on the prosecutrix.
    BEFORE MUNRO, J., AT YORK, SPRING- TERM, 1855.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ This was an indictment against tbe defendant for an assault and battery committed on tbe person of tbe prosecutrix, Nancy M‘Lean.
    
      “ At the preceding term of the Court, tbe defendant, together with three others named Ashcrafts, had been convicted of an affray, for beating a son of the prosecutrix in one of the streets of Yorkville.
    “ In the affray in question, the prosecutrix had no participation whatever; her only motive in remaining at the scene of action, was to endeavor to rescue her son, who was much intoxicated, from the violence of his assailants. It was while engaged in this task, and with her son’s head in her bosom, endeavoring to protect it from the blows of the Ashcrafts, that defendant came up and violently seized her by the arm, and Struck her two blows upon the head.
    “ It was argued for the defendant that the battery in question was not a separate and distinct offence, but was merely part and parcel of the original affray, and that the former conviction was a bar to the present prosecution.
    “I ruled otherwise.”
    
      The defendant appealed on the ground :
    Because his Honor held that the former conviction of this defendant for an affray in the case of the State against this defendant and others, at Pall Term, 1854, could not be pleaded in bar to this indictment; whereas it is submitted that the testimony adduced on the trial of this case, if it had been adduced in the former trial, would have been sufficient to have convicted the defendant of an affray in the former case, and that therefore he was entitled to plead the former conviction in bar.
    
      Olawson and Jackson, for appellant,
    cited 1 Russ. 832; 1 Ch. Or. L. 455.
    Dawkins, Solicitor, contra.
   The opinion of the Court was delivered by

Whitner, J.

The objection taken in this case rests upon the assumption of a former conviction. To constitute this a good defence the offence must be identical or necessarily included the one within the other.

The defendant with others had been convicted of an affray, all the combatants being charged in the general count in the indictment. Special counts charging each with assault and battery on the others were added.

The present indictment charges an assault and battery to have been committed on a female, whose name does not appear in the former proceeding, and who was in no way mixed up with the transaction than in an endeavor to rescue her son from the violence of others.

An affray is the fighting of two or more persons in some public place to the terror of the people.

In the former indictment there was no allegation of an assault and battery on this prosecutrix, the fact being proved would not have been pertinent to any issue then involved, and would not have supported, or in any way induced tbe conviction.

Subjected to such test it is manifest that tbe former conviction was no bar to tbe present prosecution, and tbe motion for a new trial is dismissed.

O’Neall, Waedlaw, Withers, Glover, and Mitnro, ,JJ., concurred.

Motion dimmed.  