Commonwealth v. Kinney , 2 Va. 139 ( 1818 )

Per Curiam.

“It is the unanimous opinion of the Judges present, that the said plea ought to be received.”

Note (in edition of 1853) . — In this Case the Court was of opinion, that as the inferior offence of an assault and battery, was included in the higher offence of a riot, and constituted a part of it, and the Commonwealth had already elected to indict, and had actually convicted the Defendant of that inferior offence, it was barred from prosecuting the Defendant for the higher offence, for if this proceeding were allowed, then the Defendant having been already ñned and imprisoned for the battery, might be again placed in peril of another fine and imprisonment for a riot, of which the battery of which he had been before convicted, was a part, and perhaps the chief part.

An acquittal of man-slaughter will bar a future prosecution for murder; 1 Chitty, 455-6; 2 Hale, 246. And an acquittal of murder is a bar to an Indictment for petit treason; Poster, 329. And I presume by parity of reasoning, a conviction of man-slaughter will bar a prosecution for murder, and a conviction of murder, a prosecution for petit treason, for the plea of autrefois convict depends on the same principle with the plea of autrefois acquit. 1 Chitty, 461.

In cases of this kind, where two grades of offence are the result of the same act, it would seem that the Attorney for the Commonwealth should either begin with the higher, and on failure, prosecute for the lower, or unite both offences in the same Indictment, under separate counts. Thus, the three Defendants might have been indicted for a riot, and beating a man. If convicted, their punishment covers the whole ground, and they, or either of them, cannot be again indicted for the battery alone. If acquitted, however, they could not plead autrefois acquit to a second Indictment charging them with the battery,' because although, they might not be guilty of a riot, yet they, or some of them, might be guilty of the inferior offence. See 2 Leach, 716, Van-dercoomb’s Case; and 2 East. C. L. 519. But the better way is to charge the battery in the same Indictment with the riot, under separate counts: there is no doubt that several misdemeanors may be joined in the same Indictment. 1 Chitty, 254 ; 2 Chitty, 489, Note.