
    The State vs. Abraham I. Berry.
    An indictment for an assault and battery will not be. quashed because it does not conclude “ contrary to tbe form of tbe statutes in such case made and provided.”
    Tbe second statute relative to assaults and batteries simply abridges or limits the discretion of the court with respect to the amount of the fine and the duration of the imprisonment, but in no wise attaches the penalty or punishment to the offence.
    
      This was a rule to shew cause why an indictment for assault and battery should not be quashed.
    
      Dodd, for the defendant,
    said, the indictment concludes, “contrary to the statute;” it ought to conclude, “contrary to the statutes.”
    
    *Concluding contra formam statuti for statutorum, [*375 or the contrary may be made the subject of a demurrer, or perhaps of a motion in arrest of judgment, or writ of error. Arch. Crim. Plead. 28.
    There are two statutes on this subject in New Jersey.
    The first enacts that assaults, batteries, &c., shall be deemed and taken to be misdemeanors, and punished, &c., by fine or solitary imprisonment at hard labor, or both, at the discretion of the court, before whom the conviction shall be had. Rev. Laws 262, s. 68.
    The second limits the punishment for the offence under the former act; thefine not to exceed one hundred dollars, nor the imprisonment six months. Rev. Laws 735, see. 4,
    Where one statute is relative to another, as where one creates the offence and the other the penalty, an indictment for the offence must conclude “ against the form of the statutes.” Arch. Crim. Pl. 28; 2 Hale’s Pleas of the Crown 173, s. 3; Cro. Eliz. 750; Cro. Jac. 142; 3 Levinz 61; Plowd. 206; Com. Dig. tit. Indictment, letter G. 6, 399; Yelverton Rep. (edition of 1820) 116, in note; 2 East. R. 333.
    Contra formam statuti is not surplusage. 2 Hale 171.
    This is not an indictment for an aggravated assault (only a common assault), and the words introduced in the indictment, “ by then and there striking and beating him with a club,” will not make it an aggravated or atrocious assault and battery, and it does not, therefore, come within the exception in the fourth section Rev. Laws, 735, which is, “mayhems and atrocious assaults and batteries excepted.”
    
      There is a difference between an indictment for a common assault and an aggravated assault. Arch. Crim. Pl. 241, 245.
    To maintain a count for an aggravated assault, the assault must be such that if death had ensued it would have been murder. Rex v. Milton, 1 East. P. C. 411. Hence the necessity of a second count for a common assault. Arch. Cr. Pl. 246.
    The count for an aggravated assault generally contains these words, “ so that his life was greatly despaired of.”
    The distinction as to the indictment’s concluding in the singular or plural is this—
    Where an offence is merely at common law, and concludes contra formam, &o., it may be rejected as surplusage.
    But where the offence is indictable at common law or statute, and concludes contra formam, &c., then the conclu*376] sion is not surplusage *and it cannot be sustained as a good indictment at common law.
    
      Prelinghuysen, attorney general, on the part of the state, said that the conclusion of the indictment, “ contrary to the statute," is correct.
    The law relied on by the defendant does not apply to his case. There are not two statutes in Hew Jersey, the one creating the offence of assault and battery, and another affixing the penalty.
    
      Both the statutes regulate the penalty.
    And in truth, neither of the statutes creates the offence. It was an existing common law offence before the statute.
    The whole may be rejected as surplus. The old doctrine was otherwise, but it is now settled that the words “ contra formam stat.” may be rejected, if the matter charged was an offence at common law. 1 Chitty C. Law 195, 196, and notes s. and t.
    
    And even if it could not be rejected, according to later opinions a conclusion in the singular number is valid. 1 Chitty Crim. Law 197, and notes.
    
   The Chief Justice delivered the opinion of the court.

The defendant stands indicted for an assault and battery on one Terence Brady, “ to the great damage of the said Terence Brady contrary to the statute in such case made and provided, and against the peace of this state, the government and dignity of the same.”

The defendant has moved to quash this indictment, because it concludes “ contrary to the statute,” instead of “the statutes,” in such case made and provided; and he refers to two acts of the legislature. Of these, the first, Rev. Laws 262, see. 68, enacts that assaults, batteries, false imprisonments, mayhems, affrays, riots, routs, unlawful assemblies, nuisances, cheats, deceits, and all other offences of an indictable nature at common law, and not provided for by this or some other act of the legislature, shall be deemed and taken to be misdemeanors, and punished by fine or imprisonment according to the • discretion of the court, and without any limitation as to time or amount. The other act is in the Rev. Laws 735, see. 4, and enacts that all crimes enumerated and expressed in the above mentioned section, the punishment of which not being otherwise provided for in the said act or some other law of this state, *mayhems and atrocious [*377 assaults and batteries excepted, shall be punished by fine or imprisonment, or both, the fine not to exceed one hundred dollars, nor the imprisonment six months.

The books afford us a number of cases, and some curious learning, upon the subject matter oí this exception. At one time it seems to have involved the jurisperiti in considerable perplexity; and it was gravely proposed to conclude, contra formara statut. predict, omitting the last syllable, so that the termination might be made either singular or plural, and be read statuti preclicti or statutorum predictorum, as the exigency of the case might require, or as might be found eligible to support the indictment, ut res magis va-leat quam pereat. But the statutes which • directed the indictment to be in the English language, .and in words at length, defeated this ingenions device.

Amid all the difficulty, however, which the books exhibit, I find no case to support the principle on which the objection before us is founded. The second act relative to assaults and batteries simply abridges or limits the extent of the discretion of the court with respect to the amount of the fine and the duration of the imprisonment, but in no wise attaches the penalty or punishment to the offence. It merely declares that the court in graduating the punishment prescribed for' the offence by the former act, shall not exceed a fixed limit. The present indictment, then, is clearly not within any of those ancient cases, which, when one statute created the offence and another added the penalty, required the indictment to conclude against both ; nor within any of those, where an offence is punishable by virtue of two statutes taken together, and not by virtue of either singly, as where by a.subsequent statute it is enacted that the former shall be executed in a new case, or that an additional penalty shall be inflicted; nor within those cases where an offence at common law is made a crime of an higher nature, as where a misdemeanor is made felony or a felony treason. The rules adopted in many of the old cases have upon subsequent examination been found to be unsound and have been rescinded.' But it is unnecessary minutely to review them, as.they do not apply to the case before us. And it is considered in the books at all times to be settled law, that if a statute be made perpetual by a second statute, a conclusion' in the singular will be sufficient. So if one statute adopt and continue the provisions of a former. Rex v. Morgan, Str. 1066; 1 Saund. 135, n. 3; 1 Lutw. 212. *378] So when *a second statute regulates or restrains the operation of the first; as if an offence is a felony at common law, and a statute takes away clergy from such offence when committed under particular circumstances, the indictment need not conclude against the form of the statute because it wa,s a felony before, and the statute only takes away a privilege which the common law allowed; and if it does so conclude, the indictment is nevertheless good. 2 Hales P. C. 190, 192; Page v. Harwood, Styles 86; 1 Lord Raym. 150; 1 Salk. 212, 213. In the case of Andrews v. The Hundred of Lewknor, Cro. Jac. 187, Yelv. 116, the plaintiff declared on the statute of Winton, 13 Ed. 1., and shewed that he had performed the limitations and ordinances in the stat. 27 Eliz., and concluded, against the form of the statute aforesaid. To arrest the judgment it was objected that the plaintiff had declared on two statutes, and ought to have concluded against the form of the statutes aforesaid.

But the court refused to arrest “ because the action is given and grounded only on the stat. 13 Edw. 1, and the stat. 27 Eliz. is rather in restraint and hindrance of the action than otherwise, for whereas before the latter statute, the party might have had his action generally ‘to have charged the hundred on any robbery, and since that statute certain circumstances are to be performed before the party shall have his action, to wit, the taking of an oath that he was robbed, and that he does Pot know the felons: And the court further held, that if the plaintiff had concluded against the form of the statutes it had not boon good, because the statute of 27 Eliz. did not enable the party to sue.”

The present case comes fairly within the principle of these adjudications, if in the indictment an averment in respect to the statute is at all necessary. Of such necessity it is not material to enquire, because if requisite the indictment contains it, and if not, it is harmless surplusage.

Motion to quash overruled.  