
    State vs. Bowling.
    Bowling was indicted for an assault with intent to commit murder in the first degree. He was found guilty of an assault and battery, by virtue of the act of 1832, ch. 22, and the judgment was arrested on the ground that it appeared on the face of the indictment, that the offence was committed more than twelve months before the commencement of the prosecution. This was erroneous. The defendant cannot avail himself of the act of 1820, ch. 9, to bar a prosecution in a case like this, by motion in arrest of judgment, plea or demurrer, but only by proof of the fact on trial.
    On the 28th day of June, 1850, the grand jury empan-nelled for Roane county, returned a bill of indictment against Bowling. It charged that Bowling, on the 5th day of May, 1848, made an assault upon Enox, with intent wilfully, maliciously and with premeditation to murder him. He was tried on the plea of not guilty, and acquitted of the felony and found guilty of an assault and battery.
    He made a motion in arrest of judgment, on the ground that it appeared on the face of the indictment, that the assault and battery of which he was convicted, was committed on the 5th day of May, 1848, and that the indictment was not found within one year from that date. The judgment was arrested by the presiding judge, Luctey. From this judgment the State appealed.
    
      Attorney General, for the State.
    
      Boyd, for the defendant.
   McKinney, J.

delivered the opinion of the court.

In the construction- of the act of 1832, ch. 22, it has been held by this court, that in an indictment for an assault with intent to committ murder in the first degree, is included an indictment for an assault and battery; and if upon the trial the proof does not warrant a conviction for felony, the defendant may be found guilty of the misdemeanor. And in the latter case, if the prosecution were not commenced within twelve months “from the commission of the offence,” the defendant may avail himself of the limitation prescribed in the act of 1820, ch. 9, sec. 1, as a bar to the prosecution. But he can only do so, in a case like the present, by proof of the facts upon the trial; and not by plea, demurrer, or motion in arrest of judgment. 1 Meigs’ Dig. p. 370, and cases referred to. The judgment of the circuit court arresting judgment will therefore be reversed.  