CHIEF JUSTICE PBYOB
delivered the opinion of the court.
The following indictment was returned into court by the grand jury of Montgomery county, charging that the appellant, John J. Cornelison, did “unlawfully, willfully and maliciously, and with the intent to wound and kill Richard Reid, on and upon the person of said Reid make an assault and battery with a cane, stick and cowhide, and did then and there unlawfully, willfully and maliciously, with the intent aforesaid, strike, beat, bruise and wound him, the said Reid, with a cane, stick and cowhide, and inflict upon his head and body grievous and dangerous blows, whereby the said Reid was cruelly and dangerously beaten and wounded, and his life greatly [591]*591endangered, and against the peace and dignity of the Commonwealth of Kentucky.”
To this indictment the appellant pleaded not guilty, and the jury, after hearing the testimony, returned into court the following verdict: “We of the jury, find the defendant guilty, and fix his punishment at a fine of one cent and costs, and imprisonment in the county jail for three years.”
Before proceeding to the consideration of the principal questions made by the defense, the court below having overruled the motion for a new trial, it is necessary to notice some of the rulings of the court made before the plea of not guilty had been entered. A jury having been empaneled, the defendant offered to file a written plea, disclaiming any intention to kill or seriously injure Judge Reid, at the same time confessing the assault and regretting its occurrence, filing a plea of guilty, and asking that the verdict be tempered with mercy. The court, at the instance of the attorney for the State, refused to permit the plea to be filed. The accused then offered to file this plea: “The defendant pleads guilty of the offense charged in the indictment, viz., a malicious assault and battery.”' The attorney for the State again objected, but consented that it might be filed, excluding the words “a malicious assault and battery.” The objection to the plea was sustained, and the defense then, moved to strike > from the indictment the words ‘ ‘ with the intent to kill and wound Richard Reid.” This motion was overruled, and the plea of not guilty entered; but before any witnesses had been examined this plea was withdrawn, and the following plea filed: “The [592]*592defendant pleads guilty of the offense charged in the indictment.” After this plea had been entered, the Commonwealth’s attorney had a witness called for examination, the accused objecting on the ground that no issue of fact had been made for the jury to determine; but the court, adjudging that the State had the right to place the facts before the jury, although the plea of guilty had been entered, the defendant then asked to withdraw his plea, and offered to plead not guilty. This the court refused, and the Commonwealth proceeded with the examination of the witnesses. To all of this the defendant objected, and by proper exceptions saved the questions. After the evidence on both sides had been heard by the jury, the defendant, on his motion, was allowed to withdraw his plea of guilty, and enter a plea of not guilty, upon which the verdict was returned as already stated.
We perceive no error in regard to the preliminary motions made by the appellant in offering to file the various pleas, or any evidence expressly or by inference of any arbitrary action by the court in refusing to permit a special plea to be filed, or a departure from the ordinary mode of pleading provided by the Code. There are but three kinds of pleas to an indictment.
1. A plea of guilty. 2. Not guilty; and 3, a former conviction or acquittal.
When the plea of guilty has been entered, the Commonwealth to increase, or the defendant to mitigate the punishment, has the right to introduce testimony to enable the jury to render a true verdict when making inquiry as to the extent of the punishment. A plea special in its character, for the purpose of avoiding such inquiry, should not be allowed to be filed.
[593]*593It is insisted by counsel that, after the State had proven the admissions of the accused as to the character of the assault, and his reasons for making it, it was incompetent to show that the words in red pencil were made by Judge Bowden and not by Reid. That no issue could be macle as to the mistaken belief of the accused after the reasons assigned by him had gone to the jury at the instance of the prosecution. We think it was competent and clearly relevant to the issue. If true, it was a mitigating circumstance to be considered by the jury; if untrue, the appellant was acting at his peril in making an assault for reasons that did not exist, and the Commonwealth had the right to prove the reasons assigned by the accused, and then to show that they had no foundation in fact.
Whether the court should have permitted to go to , the jury the pecuniary condition of the accused and the size of his family, is an immaterial question on this appeal. He has been fined only one cent and the costs, and we know of no rule, where a party, has been guilty of a public offense for which imprisonment is the punishment, subjecting him to a milder punishment than would be adjudged against another because the former has a family or is without any estate.
Nor do we see any error in the statement of the physicians as to Reid’s condition after the injury, or as to the manner in which he was affected, although the recital as to his symptoms came from the injured man. Nor is the manner in which the grand jury was selected the subject of revision by this court.
The testimony in this case is in substance this:
In the forenoon of the day on which the assault [594]*594was made, the witness, Col. Johnson, had invited the defendant, Cornelison, to the law office formerly occupied by Reid & Stone, but at the time the office of Stone, to consult about taking certain depositions. Reid was in the office at the time, and Cornelison read a copy of a letter that had been written, as Reid supposed, for the purpose of injuring him in the canvass he was then making for Appellate Judge. Reid, upon hearing the letter read, asked for some papers that the witness (Johnson) had, to enable him to reply to the letter. The papers were in the valise of the witness, and the valise was at the office of Cornelison. Cornelison told Reid to go to the office and he would show them to him. Reid responded that he had an engagement for the forenoon, but would call at defendant’s office as he returned from dinner at two o’clock. The assault was committed on the evening of that day between two and three o’clock — the witnesses testifying that they saw Reid running to the store of Bean, and while there the defendant lashing him over the head and shoulders with a cowhide.
The account given of the attack upon Reid in the law office of the defendant, as he stated to witnesses who have testified on the trial, is as follows: The accused said that Reid, who was his counsel in a certain case, had betrayed him, and induced the other Judges (Reid being then one of the Superior Court Judges) to render a decision against him affecting his character, and he had the evidence of it in his own handwriting. That at the time of the attack he presented the writing to Reid, and asked him if he had written it, to which he responded no. The defendant then [595]*595told him he was a liar, and, after some words had passed, struck, him once with his cane over the head, and attempted to inflict other blows that were warded off by Reid. When Reid attempted to get away he (the defendant) pulled a cowhide from under his clothes, and struck him about fifty licks. Reid then made for the door; but defendant headed him off and forced him under the stairway in a corner of the office, and then struck him about twenty-five more blows with the cowhide. That Reid made no resistance, but begged, and, finally escaping, was pursued by the defendant into the street and into Bean’s store, where the lash was again applied. Cornelison had applied for a rehearing in the case where the judgment had been adverse to him, and found on the margin of the record in that case, written with a red pencil, the words “why,” “his fee,” and “to his own statements.” He believed the writing was that of Reid’s, and exhibited it to two or more persons, before the assault was made, who were familiar with his handwriting, who stated to him, and also on the trial of this case, that they believed it was Reid’s handwriting. He thought from the marginal notes that his counsel had proven treacherous, and had the case decided against him. Judges Bowden and Richards, who were associated with Judge Reid on the bench, the one (Bowden) stated that he made the marginal notes — that they were written by him. Judge Richards states that those marginal notes are in Bow-den’s handwriting, both testifying that Judge Reid had said nothing about the case until after the opinion had been delivered.
[596]*596The principal objection made by counsel for the accused to the judgment of conviction, 'and the one to which the attention of this court has been particularly called, arises from the instruction given at the instance of the attorney for the State, authorizing the jury, upon their finding the defendant guilty, “to fix his punishment by fine in any sum, or by imprisonment in the county jail for”any period of time, one or both, at their discretion.”
It is insisted — 1. That by the rule of the common law a common assault or a common assault and battery was punished by fine only. 2. That if the ■common law authorized imprisonment as well as the imposition of a fine, such a doctrine was not in force in this State at the time of the commission of the offense, having been repealed by statute, and if in force, the judge imposed the punishment at common law and not the jury, and for that reason the jury had no power to fix the punishment.
In considering these questions, it is proper to determine, in the first place, whether, by the rule of the common law the punishment for an assault and battery was by fine only ; for if so, a reversal necessarily follows.
All indictable misdemeanors were punished at common law by fine and imprisonment, one or both, at the discretion of the judge; and where the private injury resulted in a public wrong, the party charged with the offense, if found guilty, his punishment was fixed by the judge and not by the jury. This common law doctrine, when not in some manner modified by statute, except as to the tribunal designating the punishment, [597]*597lias been regarded as the law in this State since the organization of the State Judiciary, and while such a practice has become-a part of our jurisprudence, and been so recognized by the circuit judges of the State as far back as the memory of the oldest practitioner goes, it is now maintained that no such common law rule ever existed.
. The judicial history of this State is certainly a persuasive if not conclusive argument on the question; but the importance of the case requires a careful review of the authorities, that the point involved may be finally settled. It has not been contended by the attorney for the State that the same judicial tribunals, as they existed at the common law in England, followed its rules of practice in the administration of justice in a government like ours. Under our State Constitution neither the life or liberty of the citizen is made to depend, when charged with crime, as to the extent of the punishment, upon the arbitrary will of the judge; but in all cases, when indicted for a criminal or penal offense involving his life or liberty, or subjecting him to a fine, he is entitled to a trial by jury, and that tribunal must not only find him guilty, but also fix the punishment.
That punishment, when not regulated by statute, must be as and by the rule of the common law; so we perceive no reason for reversing this case,-because at common law the judge and not the jury imposed the fine or fixed the term of imprisonment.
There are no degrees of the offense of assault and battery, except that, in imposing the punishment, the circumstances of the one case demand a greater pun[598]*598ishment than the other. A mere assault is not as high an offense against the law as when accompanied with a battery, and an assault and battery, with the intent to rob or murder, is a more aggravated assault than a mere assault and battery, and it may be said in this way that there are degrees of the offense. The punishment is graded by the enormity of the offense. The one becomes aggravated by reason of the attendant circumstances, and in such a case appeals to the jury, as it did the judge at common law, for a heavy sentence or punishment. It is true, that in England some assaults were deemed so aggravated, when made upon those in high positions, as to become the subject of statutory enactment, where the party guilty lost his entire estate, and was condemned to perpetual imprisonment. We have no such law in this State, nor has the Legislature the power, if disposed, to inflict such a prmishment.
The case before us is an assault and battery by one private citizen upon another private citizen — by one lawyer upon his brother lawyer — and in that light only can this case be considered.
The case of the Commonwealth v. Simmons, relied on by the defense, reported in 6 J. J. Marshall, 614, was brought to this court by an appeal, when a fine only had been imposed, and the question presented was as to the sufficiency of the indictment. This court had no jurisdiction where the punishment was by imprisonment, and in discussing the question the court held, through Chief Justice Robertson, that it was a simple assault and battery, and the punishment being a fine only, the court had jurisdiction. He quotes from Haw[599]*599kins, P. C., to the effect, that “ assaults and batteries may be punished not only by action at the suit of the injured party, but also by indictment at the suit of the king, wherein he shall be fined according- to the heinousness of the offense.” This quotation is from Bacon’s Abridgment, 1st volume, and no further comment made by either author.
At common law the judge might fine or imprison, at his discretion, or both fine and imprison, and where no aggravating circumstances attended the commission of the offense, the judges there, as the juries here, impose the slightest penalty, which is the fine, because, in legal contemplation, a simple assault did not demand severer punishment. In this light the question was doubtless considered by the court, or the-attention of the court (the question arising only on demurrer) was not called to the authorities on the subject, as is evident from the subsequent ruling of the court in the case of Usher v. The Commonwealth, reported in 2 Duvall, 394. Usher was indicted under the statute for shooting at one Morris, with the intent to kill or wound him, without inflicting a wound, the statute providing that in such a case the offender shall be fined not exceeding $500, and imprisoned not less than six nor more than twelve months. On the trial the proof showed only an attempt to shoot, by presenting at Morris the gun or pistol ; but as there was no statute punishing the offense of attempting to shoot, it was held, that, as to the offense, the common law was still in force, and the circuit court, holding that as the attempt to shoot was a degree of the offense mentioned in the statute, instructed the jury that they could find the party guilty, [600]*600and fine and imprison him for a period not longer than the time fixed by the statute. The jury imposed a fine only of $266. This court, in passing on this point (Chief Justice Robertson then on the bench), held that, as to this offense, the common law punished the party by fine or imprisonment, or by fine and imprisonment, at the discretion of a jury, and that, although not limited by statute as to the punishment, due respect to the statute is required that the punishment for an attempt to shoot should not be greater than that imposed for the actual shooting, and added: “If the court erred in prescribing this limit, it was an error not prejudicial, but favorable, to the defendant.”
Leaving the decisions of this court, and going to the elementary writers on the subject, Mr. Bishop, in his work on Criminal Law, vol. 2, p. 45, says: “Practically, therefore, we look upon assault as aggravated, both when it appeals to the judicial discretion for a heavy sentence, and -when it constitutes a part of a higher crime. The law may, therefore, be said to deem the assault more or less enormous according to the facts of the particular transaction. And the aggravating facts, even when they do not elevate the assault to a distinct crime, are usually set forth in the indictment as a guide to the court in pronouncing sentence. If they demand, in matter of law, a higher punishment, they must be so set out.” Says the same author: “Assault is misdemeanor, not felony. It is, therefore, punishable at the common law by fine and imprisonment, to which may be added bonds to keep, the peace. Even aggravated assault is, at common [601]*601law, a mere misdemeanor, bnt, by force of statutes, some of the aggravations are, in some of our States and England, made felonies.” (Bishop on Crim. Law. vol. 2, p. 56.) In treating of the same subject, the author, in his first volume, page 549, says: “These offenses (assault and battery) are generally spoken of in the books as breaches of the peace, which, in a qualified sense, they are. But they are more; for the common law deems that one assumes toward another unfair ground, and gives occasion for public interposition, when wrongfully undertaking to injure him by any kind of physical force.”
Russell on Crimes, vol. 1, page 1030, says: “Whenever a count for misdemeanor contains a charge of assault, accompanied with circumstances of greater or less aggravation, the jury may find the defendant guilty of a common assault, and acquit him of the circumstances of aggravation. This offense was punishable as a misdemeanor, and the punishment usually inflicted was fine, imprisonment and the finding of sureties to keep the peace.”
Mr. East, in his Law of the Crown, in treating of felonious, malicious and unlawful assaults upon the person, proceeds to say that, before mentioning assaults of an aggravated kind, he will advert to what are called common assaults and batteries.
He defines such an assault to be “any attempt or offer, with force or violence to do a corporal hurt to another, whether from malice or wantonness,” etc., and then proceeds: “These offenses are punishable by fine and imprisonment, and finding sureties, or other ignominious corporal penalties.” (East’s Crown Law, volume 1, page 406.)
[602]*602Archbold’s Criminal Practice and Pleading, volume 2, page 66, says as to assault: “Misdemeanor at common law. Pine or imprisonment, or both.”
Says Mr. Blackstone, as to. assaults and batteries, etc.: “They are indictable and punishable with fine and imprisonment, or with other ignominious corporal penalties where they are committed with any intent to murder.” (Book 4, p. 216.)
Wharton on Criminal Law, volume 2, page 1287: “An assault with intent to commit a murder is now, at common law, considered a misdemeanor only, and although it may be a high misdemeanor, it is not subject to any additional punishment as such, but only such as in the discretion of the court may be inflicted on other misdemeanors at common law.”
We think it needless to multiply authority as to the punishment at common law in this class of cases, and will proceed to consider whether that punishment has been repealed by legislative enactment.
A statute of this State, embodied first in the Revised and now in the General Statutes, provides that “a common law offense, for which punishment is prescribed by statute, shall be punished in the mode so prescribed.” (Gen. Stats., chap. 29, art. 1, sec. 3.)
It is maintained that the Legislature of the State, as far back as the year 1802, gave jurisdiction of riots, routs, unlawful assemblies, and breaches of the peace to justices, and limited the punishment to a fine not exceeding twenty dollars, and that an assault and battery constituting a breach of the peace, the limitation to the punishment was regulated by that statute until repealed. (Act of Dec. 21, 1802, vol. 2, M. & B., 1390.)
[603]*603By a subsequent enactment of February 11, 1809, the common law in relation to riots, routs, unlawful assemblies, assaults, batteries, affrays, etc., was restored, providing that persons could be indicted and punished at common law as heretofore, and further providing that no person or persons should be twice punished for the same offense. (2 vol. M. & B., 1391).
In the year 1838 an act, entitled an act to explain the law concerning riots, routs, affrays and unlawful assemblies, provided “that on the trial of any indictment for any of said offenses, it shall be in the discretion of the jury, by their verdict, to award either fine or imprisonment, or both.” (Loughborough, 520.)
Section 4, article 19, chapter 29, of the General Statutes, provides “that riots, routs, unlawful assemblies, affrays and breaches of the peace, may be punished by fine not exceeding one hundred dollars, or imprisonment not exceeding fifty days, one or both, in the discretion of a jury.”
These enactments have been specially referred to, for the reason that the act of 1802 for suppressing riots, routs, unlawful assemblies and breaches of the peace, similar in its provisions (save the punishment) to the clause of the General Statutes, imposing a fine of not exceeding one hundred dollars, and imprisonment not exceeding fifty days, has been the subject of judicial construction in the case of Ely v. Thompson, 3 Marshall, 70, and the Commonwealth v. Miller, 5 Dana, 320, and again approved by this court in the case of the Commonwealth v. Bright, 78 Ky., 238.
The case of Ely v. Thompson was an action brought by a free person of color against a justice of the peace [604]*604for having, by his judgment, inflicted upon him thirty lashes for lifting his.hand in opposition to a white man, and the question presented was: Had the act authorizing such punishment been repealed by “an act to suppress riots, routs, unlawful assemblies and breaches of the peace,” the act expressly repealing all laxos coming within its purview. It was in that case held that affrays, assaults and batteries, were within the purview of the repealing act, and embraced by its provisions, and for that reason, as well as others assigned, there was no justification for the wrong perpetrated on the plaintiff.
The case of the Commonwealth v. Miller, reported in 5 Dana, 320, presented the question, whether a fine imposed by a justice for a breach of the peace was a bar to a further prosecution for assault and battery, and it was so held.
The protection of the right of personal security becomes involved in the proceeding when the Commonwealth undertakes to punish the private wrong for the public welfare; and while the State may elect to proceed for a mere breach of the peace, caused by the assault, where the fine was originally limited to twenty I dollars, and now to one hundred dollars and fifty days, imprisonment, yet if the indictment is for the assault and battery, the punishment as to fine and imprisonment, governed by the common law, is within the discretion of the jury.
It would be inconsistent with natural reason to say that, for an offense of this sort, the party injured is to seek redress alone by his civil action, or that in a government of law, where the CommonweaRh interposes for [605]*605the preservation, of personal-security, one of the absolute rights of every freeman, that any one of its citizens can apply the cowhide to the body of his neighbor, and then satisfy the demand of the State by the payment of his money for the privilege.
The punishment inflicted in all such cases should be commensurate with the wrong done, not to the individual, but to the public.
In the case of the Commonwealth v. Bright, above, this court held that “where the Commonwealth elects the offense for which she will try the accused for an act or omission, and does try him, she can not carve out another offense of the same class, but of higher degree, and try him again.” Such was the effect of the decision in the case of the
The case upon which those decisions rest is that of the Commonwealth v. Miller, 5 Dana, 320, where it is expressly held that while the magistrate had jurisdiction to impose a fine for a breach of the peace, it was “not the only delictum for .which an indictment could be maintained for the assault and battery ;” but as the assault constituted the breach of the peace, it was a bar. But we are not left at séa in the construction of these statutes, limiting the fine, in case of a breach of the peace, first to twenty dollars, and then, by the General Statutes, to one hundred dollars and fifty days’ imprisonment.
Chief Justice Robertson delivered the opinion in the case of Dickerson v. The Commonwealth, 2 Bush, 1, where the fine for an assault and battery was two hunred and fifty dollars, and -in the case of Chandler v. [606]*606The Commonwealth, 1 Bush, 41, the fine was fifteen hundred dollars for the assault, showing plainly that these statutes afford no guide to the infliction of punishment in such cases, and the court is left to punish the offender under the common law, which is fine and imprisonment, or either or both, at the discretion of the jury.
The remaining question to be decided is one that has received more consideration than any other point involved, and that is as to what limitation, if any, is, or should be, placed upon the discretion of the jury in fixing the punishment.
Our statute in regard to crimes and punishments provides, that “if any person shall, in sudden heat and passion, without previous malice, and not in self-defense, shoot and wound another person with a gun or other instrument, * * * or shall, in like manner, cut, thrust or stab with a knife, dirk or other deadly weapon, without killing such person, he shall be fined not less than fifty nor more than five hundred dollars, or confined in jail not less than six months nor more than one year, or both, in the discretion of a jury.” (Gen. Stats., chap. 29, art. 17, sec. 1.) Where the shooting is with intent to kill, without wounding, the confinement is the same. Where malice exists, and a wound is inflicted with the intent to kill, not producing death, the punishment is confinement in the penitentiary for not less than one nor more than five years.
It is urged that in the present instance the jury is invested with the power to deprive the accused of his whole estate, or imprison him for life, for an offense less in degree than a felony, and less in degree than in [607]*607shooting and wounding in sudden heat and passion, and, therefore, some limitation should be placed upon this judicial discretion. In the first place, the punishment by imprisonment for life for offenses of this character could not be inflicted under any rule of the common law, and it is only in cases where the offense by statute is made a felony that this severe punishment was annexed, and then for assaults on ■ those high in authority, in either church or State. Here no such questions can arise, but a jury of, twelvej men, that has, since the existence of magna charta, been invested with the discretion, under the guidance of impartial judges, of passing on the personal liberty of the citizen, and of life itself, is called upon to fix, in its discretion, the extent of the punishment that shall be inflicted for the commission of an aggravated assault and battery — a tribunal connected with the administration of justice that is always ready to protect those charged with offenses from any attack of arbitrary power. We know of no tribunal where such discretion could be more safely lodged. There is a manifest dif-j ference between the effect of an' imprisonment for high crimes and the punishment for a misdemeanor. The one is assigned to a felon’s cell at hard labor, while the other is required to pay a fine, and imprisoned in the jail of his county.
Some of the offenses known as misdemeanors were of such frequent occurrence in this State as to attract legislative attention — such as shooting and wounding another in sudden heat and passion, or shooting at another without inflicting a wound. Statutes have been passed imposing penalties severe in their character ’ in such [608]*608cases, for the reason, that, under the common law rule, slight punishments were too often imposed by courts and juries ; still those penalties are not to control or fix a limit to the punishment for aggravated assaults and batteries, or other high misdemeanors, where no statute has interposed. It is not necessary to draw a parallel between the enormity of the offenses mentioned and the one being considered.
There is a limitation for the protection of the citizen against all excessive punishment — that limitation is found in the second and seventeenth sections of the Bill of Rights, the second section providing “that absolute arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” Section 17 provides “that excessive bail shall not be required,- nor excessive fines imposed, nor cruel punishments inflicted.”
For malicious shooting and wounding, with the intent to kill, the limit to the punishment being five- years, and the offense a felony by our statute, might afford the judge on the bench some guide, on the motion for a new trial, in determining whether or not the jury had abused its discretion by the verdict in this case. No limit has been fixed by the Legislature to the punishment for this offense, and the court having no power to designate the limit, the jury exercising its discretion, it was then within the power .of the court to set the verdict aside, if that discretion had been abused by the infliction of a cruel punishment. Was the punishment cruel and excessive?
If the law-making power (the Legislature) had undertaken to regulate the punishment for an assault and [609]*609battery, attended with the lash of the cowhide on the back of its citizens, what would likely be the fine and imprisonment imposed? This was the question addressed to the court and jury trying this case, and in the exercise of their legal discretion they have annexed a punishment that this court will not disturb. Neither the court npr the jurors could have closed their eyes to the cruelty and enormity of the offense committed. None more humiliating or degrading could have been inflicted upon the person of the injured man, and nothing more calculated to render the life of the wrong-doer more insecure. Such an injury strikes at the very existence of society, and the punishment imposed is only commensurate with the injury done. To have taken the life of the assaulting party would have made Reid guilty of a still greater crime, and the submission by him without resistance to the cruel blows, whether from his peculiar mental and physical condition or his respect and reverence for the law, 'makes the necessity the greater for vindicating the wrong. The law should always inflict the punishment, and not the party who has suffered the injury.
•Judgment affirmed.
Judge Lewis dissenting. Judge Holt not sitting.