
    The State vs. Chaffin.
    Assault and Battery. Former conviction. If a party be charged with an assault, and convicted thereof, he cannot afterwards be punished for the battery committed at the same time.
    The defendant was arraigned before a Justice of the Peace under the “small offense law,” and fined for the commission of an “assault,” as charged in the warrant. Subsequently he was indicted in the circuit court for an assault and battery, to which indictment he pleaded the former conviction of the assault. To this plea the Attorney General demurred, and the demurrer being overruled and judgment rendered for the defendant, the Attorney General, pro tern., Kerojieval, in behalf of the State, appealed in error.
    ATTORNEY GENERAL, for the State.
    Bright, for the defendant in error.
   TotteN, J.,

delivered tbe opinion of tbe court.

Tbe defendant was indicted for an assault and battery upon tbe person of Daniel I-Iolman. He pleaded in bar a former conviction before a Justice of tbe Peace, under tbe “small offense law.” The warrant before tbe justice is for an asscmlt, but tbe plea avers that it is for the same offense as that alleged in the indictment.

Hie battery includes tbe assault, and for tbe assault the defendant has received tbe legal punishment. He cannot now be punished for tbe battery, because it cannot be separated from tbe assault. Tbe one is a necessary part of the other, and if he be now punished for the battery, be will thereby be twice punished for tbe assault; that is, be twice punished for tbe same offense, which, of course, cannot be done.

Let tbe judgment be affirmed.  