
    The Commonwealth v. Nicholas C. Kinney.
    Assault and Battery — Autrefois Con vict. — A conviction against one under an Indictment for an assault and battery on H. M. may be pleaded by him in bar to an Indictment against the same Defendant and two others, for a riot and beating the said H. M. the assault and battery in each case being identically the same.
    The Defendant was indicted in the Superior Court of Eaw for Augusta county, together with George Holloway and James J. Pleas-ants ; for that, they did unlawfully, riotously, and routously assemble and gather together, to disturb the peace of the Commonwealth, and being so assembled, &c. in and upon one Henry Morris in his dwelling-house, &c. unlawfully, riotously, and routously did beat, wound, and ill treat,and other, wrongs to the said H. M. then and there unlawfully, riotously, and routously did, &c. The process issued on this Indictment was executed on Kinney, but not on the other Defendants. Kinney appeared, and pleaded in bar to the Indictment, “that he had before been indicted, tried, and convicted in the Corporation Court of Staunton, for committing an assault and battery upon the said Henry Morris,” with averments, “that the said assault and battery was the same with that charged in the present Indictment, &c. and that the riotous conduct of himself and the other Indictees, was given in evidence to the jury impanelled in the Corporation Court aforesaid, upon his said trial, in aggravation of the *said assault,” together with the usual averments in such pleas. The Attorney for. the Commonwealth objected to the receiving of the said plea, and the Court adjourned to this Court this question, “ought the said plea to be received?”
    
      
      Criniinul Law — Conviction for Lower Offence — Effect upon Higher of Same Grade. — In Lambert v. Com., 9 Leigh 606, it is said: “A conviction for an assault is. a bar to a prosecution for a riot, an acquittal of manslaughter a bar to a prosecution for murder, of murder a bar to a prosecution for petit treason. Com. v. Kinney, 2 Va. Cas. 139.” See monographic note on “Assault and Battery” appended to Roadcap v. Sipe, 6 Gratt. 213; monographic note on “Autrefois, Acquit and Convict” appended to Page v. Com., 26 Gratt. 943.
    
   Per Curiam.

“It is the unanimous opinion of the Judges present, that the said plea ought to be received.”

Note (in edition of 1853) . — In this Case the Court was of opinion, that as the inferior offence of an assault and battery, was included in the higher offence of a riot, and constituted a part of it, and the Commonwealth had already elected to indict, and had actually convicted the Defendant of that inferior offence, it was barred from prosecuting the Defendant for the higher offence, for if this proceeding were allowed, then the Defendant having been already ñned and imprisoned for the battery, might be again placed in peril of another fine and imprisonment for a riot, of which the battery of which he had been before convicted, was a part, and perhaps the chief part.

An acquittal of man-slaughter will bar a future prosecution for murder; 1 Chitty, 455-6; 2 Hale, 246. And an acquittal of murder is a bar to an Indictment for petit treason; Poster, 329. And I presume by parity of reasoning, a conviction of man-slaughter will bar a prosecution for murder, and a conviction of murder, a prosecution for petit treason, for the plea of autrefois convict depends on the same principle with the plea of autrefois acquit. 1 Chitty, 461.

In cases of this kind, where two grades of offence are the result of the same act, it would seem that the Attorney for the Commonwealth should either begin with the higher, and on failure, prosecute for the lower, or unite both offences in the same Indictment, under separate counts. Thus, the three Defendants might have been indicted for a riot, and beating a man. If convicted, their punishment covers the whole ground, and they, or either of them, cannot be again indicted for the battery alone. If acquitted, however, they could not plead autrefois acquit to a second Indictment charging them with the battery,' because although, they might not be guilty of a riot, yet they, or some of them, might be guilty of the inferior offence. See 2 Leach, 716, Van-dercoomb’s Case; and 2 East. C. L. 519. But the better way is to charge the battery in the same Indictment with the riot, under separate counts: there is no doubt that several misdemeanors may be joined in the same Indictment. 1 Chitty, 254 ; 2 Chitty, 489, Note.  