
    The State, Respondent, v. Warne, Appellant.
    1. The fifth section of the seventh article of the act concerning practice in criminal cases (E. C. 1855, p. 1196) is not applicable to prosecutions for assault and battery commenced before justices of the peaee; the jury, in the case of a conviction, must assess the fine to be paid. (See E. C. 1855, p. 979, § 11.)
    
      Appeal from St. Louis Criminal Court.
    
    This was a prosecution for assault and battery. The cause was taken by appeal to the St. Louis criminal court. The jury in the latter court returned the following verdict: “We, the jury, in the case of The State v. Thomas S. Warne, find the defendant guilty of assault and battery, and can not agree as to the penalty.”
    The court assessed the fine at one hundred dollars.
    
      J. C. Jones, for appellant.
    
      Mauro, (circuit attorney,) for the State.
   Napton, Judge,

delivered the opinion of the court.

The fifth section of the seventh article concerning practice in criminal cases does not extend to trials for assault and battery before a justice. The 11th section of the law specially applicable to this subject declares that all trials under it shall be by a jury, &c., who shall assess the fine, &c. (R. C. 1855, p. 979.) The court had no authority therefore to assess the fine in this case, and the judgment must be reversed. The instructions given in the case were correct. We pass by the oral remarks of the court in relation to one of the witnesses without comment, as it is not likely that they will recur upon another trial.

Judgment reversed and cause remanded.

The other judges concur.  