THE STATE OF ALABAMA VS STANDIFER, et al., 5 Port. 523

GOLDTHWAITE, J. -The defendants were indicted at the Fall term of the year eighteen hundred and thirty-five, of the Circuit Court of St. Clair county, for an assault and battery, with intent to commit murder, on one John W. F. Low-ry. The venue was changed to Benton county, — * and at May term, one thousand eight hundred and thirty-six, the defendants pleaded in bar of the said indictment, — that they had before that time been indicted, tried and acquitted, of the murder of Levi A.

Lowry, setting forth in their plea, the indictment, proceedings thereon, trial and acquittal, averring their identity, and that the assault and murder, with which they were so charged, tried and acquitted, were identical with the crime wherewith they were then charged, which was committed at the same time, and in the same transaction, in which the killing of the said Levi A. Lowry, took place; and concluding with the prayer that they might be discharged of the indictment.

To this plea, the State demurred, and the demurrer was sustained by the Circuit Court, which reserved the questions bt law arising on the plea and demurrer, as novel and difficult, for the consideration of this Court. A trial was had on the plea of not guilty, which resulted in the conviction of the defendants, of the assault and battery, without the intent, &c. No argument has been submitted by the defendants to sustain their plea, and we. have arrived, without difficulty, at the conclusion, that the demurrer was properly sustained.

It is not of unfrequent occurrence, that the same individual, at the same time, and in the same transaction, commits two or more distinct crimes, and an acquittal of one, will not be a bar to punishment for the other. As in the case presented by the demurrer to the plea, now under consideration, one person may be killed and another assaulted in the same affray. If the indictment included both offences, it must be pronounced bad; yet it could not be tolerated, that the offender, because acquitted of killing, must necessarily be discharged of the assault.

Cases exist in which a minor offence may be discharged by the acquittal of the individual charged, on an indictment for a major offence; but these are cases in which the jury, trying the case, could have lawfully returned a verdict for the lesser crime.— Thus an acquittal for murder, would ,be a bar to an indictment for manslaughter. So of a burglary, when the same indictment included a charge of larceny — an acquittal would be a complete discharge. But the reason, in such cases is, that the jury could, if the evidence was satisfactory, have convicted the offender of the less criminal charge.

In the present’, case, no question can possibly arise as to the law. The offences have no appearance of identity: they could not be included in the same indictment; and and the evidence, which would produce an acquittal of the one, might produce a conviction of the other. If it were necessary to produce authorities, on a subject so evidently clear, those referred to by the counsel for the State, are apt and conclusive. The judgment rendered by the Court below, was correct in point of law, and must be so certi-|i,ed;