Swearingen v. State , 5 Mo. 329 ( 1838 )

Tompkins, Judge,

delivered the opinion of the court.

The plaintiff in error, was indicted in the circuit court for an assault and battery. He moved in the circuit court to quash the indictment, and his motion being overruled, he prosecutes his wiit of error to reverse that judgment.

The question to be here settled is, whether an assault .and battery is an indictable offence.

The act of 20th January, 1835, declares that “hereafter no assault, battery or affray shall be indictable, but all such offences shall be prosecuted and punished in a summary manner before justices of the peace, as hereinafter provided” — see sec. 1, p. 572 of the Digest of the year 1834-5.

By an act, passed 3d February, 1837, it is declared that “whenever a fine, penalty or forfeiture is, or may be "inflicted, by any act of the general assembly, for any of-fence, the same may be recovered by indictment, notwithstanding another or a different remedy for the recovery of the same may be specified in the act prescribing the fine, penalty or forfeiture” — see page 63 of the session acts.

Since the act con-cernmg fines, for-passed Feb? 3, 1837, assaults and batteries are m-dicta e ° enC8S'

It is contended that, by this act, jurisdiction is given to the circuit court in cases of assault and battery. By the 25th section of the third article of the act of 21st March, 1835, to regulate proceedings in criminal cases, it is declared that “in all cases where any fine or penalty is, or shall be imposed by any statute of this State as a punishment for any offence, and no other provision is made for the recovery thereof, the same may be recovered by indictment.”

It seems that the legislature intended by the act of 1837, to make the indictment a more general remedy for the recovery of fines and penalties, than it had been made by the act of 18 35, last cited. There is no exception to the provision of the act of 1837, as there is to that of 1835. It must then, as it seems to me,.extend to the of-fence of assault and battery, notwithstanding another and different remedy for the recovery of the fines inflicted for that offence is specified by the act of 20th January, 1835, to define the jurisdiction and regulate the proceedings of justices’ courts in cases of breach of the peace. The judgment of the circuit court ought then, in my opinion, to be affirmed; the rest of the court concurring in that opinion, it is affirmed»