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.