
    STATE v. REID LINDSAY.
    Under the plea of former conviction, if the acts alleged in the second indictment are embraced in the first, and relied upon to sustain that indictment and to increase the punishment of the defendant, he is entitled to an acquittal; therefore,
    Where one was indicted for an assault and battery, and it was provedthat, in a former indictment against him and others for a riot, the assault charged had been given in evidence, with other acts of like character, his conviction of the riot is a bar to the second prosecution.
    
      (State v. Stanly, 4 Jon., 290; S. v. Ingles, 2 Hay., 143; and S. v. Com. Fayetteville, 2 Mur. 371, cited and approved.)
    Assault and Battery, tried before Buxton J., at Spring Term 1867 of the Superior Court of Caldwell.
    The defendant was charged with committing an assault upon one R. B. Dula in the town of Lenoir, -and at the trial relied upon the plea of former conviction. In support of his plea he introduced the record of his conviction at the same term under an indictment for a riot and proved that, on that trial, the State had given in evidence, among other acts of the defendant and his associates calculated to disturb the public peace, the assault on R. B. Dula for which he is now indicted. The defendant asked the court to charge that the former conviction was a bar to this indictment. The court refused so to charge, and the defendant excepted.
    Yerdict for the State; Rule for a New Trial; Rule discharged ; Judgment, and Appeal.
    
      Folk, for the appellant.
    The following propositions are sustained by the authortiies entitled to most respect:
    
      1. When the acts alleged in both indictments are so blended together, that the charge in the second must have been considered by the court in passing on the first, a conviction on the first indictment is a bar to the second prosecution. If a man be convicted of an assault he is protected thereby from prosecution for the battery. So a conviction of a riot in a meeting house during public worship, is a bar to a subsequent indictment for disturbing the religious assembly. Stater. Townsend, 2 Har., 543; see also S. r. Cooper, 1 Green., 31; S. r. Fayetteville, 2 Mur. 371; Filler r. the State, 7 Humph., 508.
    2. If the acts alleged in the second indictment are embraced in the charge contained in the first, and have been given in evidence to procure the first conviction, and increase the punishment, the first conviction is a bar to any second prosecution for those acts. Commonivealth r. Kinney, 2 Va. Cases, 139; Bish. on Or. Law, vol. 1, p. 890; State r. Ingolds, 2 Hay., 148. For upon the first indictment the court receives evidence of all the concomitant facts and will apportion the punishment to the nature of the offence as enhanced by all these circumstances. Hence the rule, laid down by a recent writer on criminal law, “a prosecutor may carve as large an offence out of the transaction as he can, but he shall not cut but once.” Bish. Cf. Law, vol. 1, p, 892.
    
      Atto. Gen., contra.
    
   Battle J.

In the case of the State v. Stanly, 4 Jon., 290, it is said that “The plea of antrefois convict, like that of autrefois acquit, is founded upon the principle that no man shall be placed in peril of legal penalties more than once upon the same accusation”; and for this is cited 1 Chitty, Criminal Law, 252-462. The principle is clear, but there has been much difficulty in its application to the great variety of cases which have arisen on the subject. It is unnecessary for us to refer to many of them, because we think that the second proposition contended for by the counsel for the defendant is supported by decisions of this court, and is decisive of the present case. The proposition is that “If the acts alleged in thea second indictment are embraced in the charge contained in the first, and have been given in evidence to procure the first conviction, and increase the punishment, the first conviction is a bar to any second prosecution for those acts.” Thus in the case of State v. Stanly, supra, it was held that, if a party has been convicted and punished in the County Court upon an indictment for an affray, he cannot be tried again in the [Superior Court'upon an indictment for an assault and battery relating to the same transaction. So in State v. Ingles, 2 Hay., (p. 148 of the 2d ed.) it is said that a former conviction of another offence of a different denomination, but grounded on the same facts as those relied on in the second indictment,*is a bar. See also State v. Commissioners of Fayetteville, 2 Mur. 371.

In the case before us the assault and battery charged in the bill was undoubtedly relevant tojprove the participation of the defendant in the riot allegedjjn the former indictment. The bill of exceptions shows thatjitywas in fact proved on the trial for riot, and for any thing that we know, it may have been the cause of the defendant’s conviction on that trial. To sustain an indictment for the same act, though charged as a different offence, would be therefore to punish the defendant twice for the same criminal act, which cannot be allowed.

The judgment must be reversed and a venire de novo awarded.

Per Curiam. Venire de novo.  