The opinion of the Court was delivered by
The objection taken in this case rests upon the assumption of a former conviction. To constitute this a good defence the offence must be identical or necessarily included the one within the other.
The defendant with others had been convicted of an affray, all the combatants being charged in the general count in the indictment. Special counts charging each with assault and battery on the others were added.
The present indictment charges an assault and battery to have been committed on a female, whose name does not appear in the former proceeding, and who was in no way mixed up with the transaction than in an endeavor to rescue her son from the violence of others.
An affray is the fighting of two or more persons in some public place to the terror of the people.
In the former indictment there was no allegation of an assault and battery on this prosecutrix, the fact being proved would not have been pertinent to any issue then involved, and
Subjected to such test it is manifest that tbe former conviction was no bar to tbe present prosecution, and tbe motion for a new trial is dismissed.
Motion dimmed.