It appears that the defendant wounded two persons in the same affray, at the same instant of time, and with the same stroke. On a regular complaint made, he has been convicted before a Court of competent jurisdiction, for assaulting, beating and wounding Frederick Miller, one of those persons. He stands here indicted for assaulting, beating and wounding Elias Doty, the other of those persons; and the defendant pleads in bar the former conviction, which he alleges to have been for the same offence. The only question is, whether the defendant has been already legally convicted of the offence charged in the indictment ? Of this there can be no doubt; for it is apparent on the record, that the assault and battery, charged in the indictment, and that of which he was convicted by Mr. Justice Randall, were at tire same place and in the same affray, and the wounds made by the same instrument and by the same stroke.
This is not a question between either of the persons injured by the assault and battery, and their assailant, redress has been or may be obtained by them by private actions ; but it is a question between the government and its subject, and the Court are clearly of opinion, that the indictment cannot be sustained. The indictment charges^ the defendant with having
Prisoner discharged.
-, for the State.