The defendant was tried in the circuit court upon an indictment charging him with unlawfully assaulting one George Snyder, found guilty by a jury, and assessed a fine of fifty dollars аnd sentenced to ten days imprisonment in the county jail.
By his two special pleas the defendant alleged that the offense for which he wаs indicted was the same for which he had been /tried and convicted before the mayor of the town of Smithfield, namely an assault and battery uрon George Snyder and Austin Clark, within the limits of the said town of Smithfield, and that he was fined five dollars and the costs of the proceeding by said mayor.
To thеse pleas the State, by its prosecuting attorney, tendered its two special replications; the first alleging that the complaint in the fоrmer ease, as set out in the defendant’s plea No. 2, was bad, and that legal conviction could not be had upon the same; the seсond special replication alleging that the defendant had colluded with and procured the special officer making the arrest to arrest him and lodge .complaint against him before the mayor. The first special replication is answered by the transcript of the mаyor’s docket, exhibited with the special pleas, and later tendered in evidence on the trial in the circuit court. There is no evidence to support the State’s second special replication.
*57 The trial court permitted these pleas and special replications to be filed, and issue was joined thereon and on defendant’s plea of not guilty.
On the trial the court refused to permit the introduсtion, of evidence of the former conviction. Defendant tendered the following transcript from the mayor’s docket:
“Town of Smithfield, County of Wetzel, and State of W. Va.
vs. ) Misdemeanor.
Clem Eiger.
This 30th day of September 1923, one Clem Kiger did commit an assault and battery -on the person of Austin Clark and George Snyder in the presence and sight of me E. B. Mclntire, Mayоr of said Town, and I thereupon ordered the arrest of said Clem Eiger, and I thereupon appointed Howard Brummage to make said arrest.
Thereupon said Howard Brummage arrested said Clem Eager and brought him before me at my said office in said town for trial and I thereupon arraigned said Clem Eiger upon said charge, and for plea thereto said Clem Eiger says that he is guilty of assault and battery upon said Austin Clark and George Snyder.
It is my judgment that said Clem Eiger do pay a fine of $5.00 and costs of this prosecution.
(Signed) E. E. McIntiRE, Mayor.”
It is contended by counsel for the State, that a municipal corporation chartered under the general laws of this State has no inherent power through its police officers to arrest and fine for assault and battery, and that, therefore a conviction for such offense before the mayor is invalid for want of jurisdiction, and is not a bаr to a prosecution for the same act or offense in the circuit court.
By section 39 of chapter 47 of the Code, the mayor оf a city, town or village is made ex officio a justice and conservator of the peace within such miinicipality, and within the same is vestеd with all the powers and duties vested by law in a justice of the peace, in criminal causes; and by section 221 of chapter 50 of the Codе, a justice of the peace may without a warrant make or order an arrest for a breach of the peace committed *58 in his presence; and section 219 of said chapter 50 confers on justices of the peace jurisdiction in cases of assault and bаttery. These provisions unquestionably gave the mayor of the town of Smithfield jurisdiction to arrest and punish for the offense charged herein, as аnd for an offense against the State.
There is nothing in the record tending to show that defendant was tried before the mayor under a town ordinanсe making assault and battery an offense against the town, nor that there was in force such an ordinance; and the mayor was not permitted to testify further than that the act constituting the offense was committed in his presence. Counsel for the State calls attention to the faсt that the transcript of the mayor’s docket styles the case, “Town of Smithfield, County of Wetzel and State of W. Va. vs. Clem Kiger.” In
State
v.
Hoilman,
The facts appearing in the record, and the course pursued by the mayor in arresting and trying the defendant tend clearly to show that he was proceeding under the provisions of section 39 of chapter 47, and sections 219 and 221 of chapter 50 of the Code, in his capacity as a justice of the peace of "Wetzel County. If so, he tried and fined the defendant for an offense against the State, and not against the town of Smith-field; whеrefore the former conviction is pleadable in bar to another trial for the same unlawful act, when charged as constituting the samе offense.
Since there is no evidence of a municipal ordinance making assault and battery an offense against the town, we arе not called upon to say whether or not the same unlawful act may constitute such separate and distinct offenses against the town and the State, that the conviction of the one may not bar a trial for the other.
In view of the foregoing, we are of opinion that the triаl court erred in refusing to admit evidence of the former conviction.
The judgment will be reversed, the verdict of the jury set aside, and the defendant awarded a new trial.
Judgment reversed; verdict set aside; new trial awarded.