Worden, C. J.
The appellee in this case has moved to dismiss the appeal on the alleged ground of the insufficiency of the notice of appeal.
[224]*224We have not considered the objection made to the notice given, because the appellee has appeared to the cause in this court, and joined in error. It is therefore immaterial whether any notice was given. The appearance and joinder in error are a waiver of notice of the appeal. The motion must be overruled.
The appellee wras indicted in the court below for an assault and battery upon the person of Reason Lane, with intent thereby to unlawfully, feloniously, purposely, and with premeditated malice, kill and murder him.
The appellee pleaded as follows :
“ The defendant, William Hattabough, p. his own proper person, comes now into open court, and having heard the said indictment read against him, so found and returned as shown therein, says that the State of Indiana ought not further to prosecute the said indictment against him, because, he says, that heretofore, - to wit, on the 7th day of January, 1879, before one William H. Gregory, a duly elected, commissioned and qualified justice of the peace in and for Washington county, State of Indiana, that he, said William Hattabough, was charged upon oath by one John E. Johnson, with an assault and' battery upon the person of Reason Lane, a,t the county and State aforesaid, upon the 6th day of January, 1879; that he appeared in court and voluntarily surrendered himself to the custody of the court, entered a plea of guilty to the said charge and was fined one dollar and costs of suit; that said judgment was paid in full by said defendant, and is in full force and not appealed from ; that the assault and battery now complained of in said indictment for assault and battery with intent to 'murder Reason Lane is the same identical charge of assault and battery, upon which he was charged and fined before the said Gregory aforesaid; and this he is ready to verify. Wherefore,” etc.
The State filed a demurrer to the plea, which was over[225]*225ruled, and the State excepted. The defendant was discharged.
The State appeals, and has assigned error upon the ruling on the demurrer.
The crime charged in the indictment is a felony, while a simple assault and battery is only a misdemeanor. Justices have no jurisdiction to try felonies. In respect to the latter grade of offences they have only the powers of an examining court, and can neither acquit nor convict thereof. They can only hear and commit or bind over the accused to answer before a court having jurisdiction to try the offence, or discharge the accused, as the evidence may warrant; and a discharge by a justice does not prevent another prosecution. The State v. Morgan, 62 Ind. 35.
But justices have jurisdiction to try simple assaults and batteries and a conviction or acquittal before a justice, of such an offence, will bar another prosecution for the same cause.
"With this general statement of the law, we come more. directly to the question involved : Is a conviction or an acquittal before a justice of the peace, of an assault and battery, a bar to a prosecution for the same assault and battery with intent to commit a felony ?
To free the question from any confusion of ideas in re-’ speet to the jurisdiction of justices, we think it may be stated as follows : Does a conviction or an acquittal of a simple assault and battery, before a court of competent jurisdiction to try the same, bar a subsequent prosecution for the same assault and batteryadth intent to commit a felony ?
This question must, in our opinion, be answered in the negative, on principles which we regard as well established, though there are some authorities that seem to support a contrary doctrine.
The constitution provides, that “ Yo person shall be put in jeopardy twice for the same offence.”
[226]*226By the prosecution for the assault and battery, the appellee was not put in jeopardy at all for the offence of assault and battery with intent to commit the murder ; while if, upon the trial of the indictment, the State should fail to make out the felonious intent, the appellee could avail himself of the former conviction, so that he could not be punished twice for the same simple assault and battery. The State v. George, 53 Ind. 434.
The usual test by which to determine whether the former conviction or acquittal was for the same offence as that charged in the second prosecution, and, therefore, whether the former is a bar to the latter, is to enquire whether the evidence necessary to sustain the latter would have justified a. conviction in the former case. Burns v. The People, 1 Parker C. C. 182 ; The People v. Saunders, 4 Parker C. C. 196 ; 1 Wharton Crim. Law, sec. 566 ; The State v. Elder, 65 Ind. 282.
The question arises then, whether, if upon the trial of the cause before the justice it had appeared that the assault and battery had been perpetrated with the intent to commit the murder (a fact necessary to be established in order to support the present indictment), the appellee could have been legally convicted of the simple assault and battery. It. is quite clear, under the authorities, that he could not. Neither, on general principles of law, ought he to have been ; for, if rightfully convicted, the conviction would bar a subsequent prosecution for the felony, and the supposed felon would escape the punishment due to his crime, suffering only the trivial punishment prescribed for the misdemeanor.
.And the reason why a conviction could not have been had upon the former trial is, that the misdemeanor involved in the assault and battery was merged in the felony.'
There was no crime of assault and battery as an independent offence. The felony was the crime and the only crime of which the appellee was guilty. Therefore the evi[227]*227dence necessary to sustain the indictment could not have justified a conviction of the simple assault and battery. Hence the appellee was not, by the former prosecution, put in jeopardy for the crime charged in the indictment.
The doctrine of merger in such case, though it has been in some instances called m question, is too thoroughly established in our system of criminal jurisprudence to be abrogated without legislative sanction. Hor is it perhaps desirable that it should be ; for if one guilty of a felony may be convicted of the misdemeanor involved in the felony, and thereby escape the punishment due to the felony, by setting up the former conviction, the purpose of the law in prescribing a greater punishment for felonies than misdemeanors will be thwarted. The good of society requires rather that, if charged with the misdemeanor, he should be acquitted thereof, and put upon his trial for the felony.
In reference to the merger we quote the following passage from the opinion of this court, delivered by Stuart, J., in the case of Wright v. The State, 5 Ind. 527 : “ Assault and battery, which is simply a misdemeanor, is not included in any of the degrees of homicide. The misdemeanor is merged in the felony. The assault and battery which results in death, must belong either to felonious homicide embraced in murder or manslaughter; or to justifiable or excusable homicide, as the execution of a felon by due course of law, or in a proper measure of self-defence.
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Worden, C. J.
The appellee in this case has moved to dismiss the appeal on the alleged ground of the insufficiency of the notice of appeal.
[224]*224We have not considered the objection made to the notice given, because the appellee has appeared to the cause in this court, and joined in error. It is therefore immaterial whether any notice was given. The appearance and joinder in error are a waiver of notice of the appeal. The motion must be overruled.
The appellee wras indicted in the court below for an assault and battery upon the person of Reason Lane, with intent thereby to unlawfully, feloniously, purposely, and with premeditated malice, kill and murder him.
The appellee pleaded as follows :
“ The defendant, William Hattabough, p. his own proper person, comes now into open court, and having heard the said indictment read against him, so found and returned as shown therein, says that the State of Indiana ought not further to prosecute the said indictment against him, because, he says, that heretofore, - to wit, on the 7th day of January, 1879, before one William H. Gregory, a duly elected, commissioned and qualified justice of the peace in and for Washington county, State of Indiana, that he, said William Hattabough, was charged upon oath by one John E. Johnson, with an assault and' battery upon the person of Reason Lane, a,t the county and State aforesaid, upon the 6th day of January, 1879; that he appeared in court and voluntarily surrendered himself to the custody of the court, entered a plea of guilty to the said charge and was fined one dollar and costs of suit; that said judgment was paid in full by said defendant, and is in full force and not appealed from ; that the assault and battery now complained of in said indictment for assault and battery with intent to 'murder Reason Lane is the same identical charge of assault and battery, upon which he was charged and fined before the said Gregory aforesaid; and this he is ready to verify. Wherefore,” etc.
The State filed a demurrer to the plea, which was over[225]*225ruled, and the State excepted. The defendant was discharged.
The State appeals, and has assigned error upon the ruling on the demurrer.
The crime charged in the indictment is a felony, while a simple assault and battery is only a misdemeanor. Justices have no jurisdiction to try felonies. In respect to the latter grade of offences they have only the powers of an examining court, and can neither acquit nor convict thereof. They can only hear and commit or bind over the accused to answer before a court having jurisdiction to try the offence, or discharge the accused, as the evidence may warrant; and a discharge by a justice does not prevent another prosecution. The State v. Morgan, 62 Ind. 35.
But justices have jurisdiction to try simple assaults and batteries and a conviction or acquittal before a justice, of such an offence, will bar another prosecution for the same cause.
"With this general statement of the law, we come more. directly to the question involved : Is a conviction or an acquittal before a justice of the peace, of an assault and battery, a bar to a prosecution for the same assault and battery with intent to commit a felony ?
To free the question from any confusion of ideas in re-’ speet to the jurisdiction of justices, we think it may be stated as follows : Does a conviction or an acquittal of a simple assault and battery, before a court of competent jurisdiction to try the same, bar a subsequent prosecution for the same assault and batteryadth intent to commit a felony ?
This question must, in our opinion, be answered in the negative, on principles which we regard as well established, though there are some authorities that seem to support a contrary doctrine.
The constitution provides, that “ Yo person shall be put in jeopardy twice for the same offence.”
[226]*226By the prosecution for the assault and battery, the appellee was not put in jeopardy at all for the offence of assault and battery with intent to commit the murder ; while if, upon the trial of the indictment, the State should fail to make out the felonious intent, the appellee could avail himself of the former conviction, so that he could not be punished twice for the same simple assault and battery. The State v. George, 53 Ind. 434.
The usual test by which to determine whether the former conviction or acquittal was for the same offence as that charged in the second prosecution, and, therefore, whether the former is a bar to the latter, is to enquire whether the evidence necessary to sustain the latter would have justified a. conviction in the former case. Burns v. The People, 1 Parker C. C. 182 ; The People v. Saunders, 4 Parker C. C. 196 ; 1 Wharton Crim. Law, sec. 566 ; The State v. Elder, 65 Ind. 282.
The question arises then, whether, if upon the trial of the cause before the justice it had appeared that the assault and battery had been perpetrated with the intent to commit the murder (a fact necessary to be established in order to support the present indictment), the appellee could have been legally convicted of the simple assault and battery. It. is quite clear, under the authorities, that he could not. Neither, on general principles of law, ought he to have been ; for, if rightfully convicted, the conviction would bar a subsequent prosecution for the felony, and the supposed felon would escape the punishment due to his crime, suffering only the trivial punishment prescribed for the misdemeanor.
.And the reason why a conviction could not have been had upon the former trial is, that the misdemeanor involved in the assault and battery was merged in the felony.'
There was no crime of assault and battery as an independent offence. The felony was the crime and the only crime of which the appellee was guilty. Therefore the evi[227]*227dence necessary to sustain the indictment could not have justified a conviction of the simple assault and battery. Hence the appellee was not, by the former prosecution, put in jeopardy for the crime charged in the indictment.
The doctrine of merger in such case, though it has been in some instances called m question, is too thoroughly established in our system of criminal jurisprudence to be abrogated without legislative sanction. Hor is it perhaps desirable that it should be ; for if one guilty of a felony may be convicted of the misdemeanor involved in the felony, and thereby escape the punishment due to the felony, by setting up the former conviction, the purpose of the law in prescribing a greater punishment for felonies than misdemeanors will be thwarted. The good of society requires rather that, if charged with the misdemeanor, he should be acquitted thereof, and put upon his trial for the felony.
In reference to the merger we quote the following passage from the opinion of this court, delivered by Stuart, J., in the case of Wright v. The State, 5 Ind. 527 : “ Assault and battery, which is simply a misdemeanor, is not included in any of the degrees of homicide. The misdemeanor is merged in the felony. The assault and battery which results in death, must belong either to felonious homicide embraced in murder or manslaughter; or to justifiable or excusable homicide, as the execution of a felon by due course of law, or in a proper measure of self-defence. In either event, the simple assault and battery no longer remains as such to be punished. It is either merged, justified or excused.”
The merger of the misdemeanor in the felony is as complete in the case of an assault and battery with intent to commit murder, as where the murder is committed:
"We quote the following paragraph from 2 Eussell Crimes, p. 1026, 9th ed., as illustrative of the foregoing views:
[228]*228“Thus where the defendant was indicted for a misdemeanor, in burning a house in his own occupation, such house being alleged to be contiguous and adjoining to certain dwelling-houses of divers liege-subjects, etc.; and the facts of the case, as opened by the counsel for the prosecution, appeared to be that the defendant set fire to his own house, in order to defraud an insurance office, and that in consequence several houses of other persons, adjoining to his own, were burnt down; Buller, J., said that if other persons’ houses were in fact burnt, although the defendant might only have set fire to his own, yet under these circumstances the prisoner was guilty, if at all, of felony (the misdemeanor being merged) and could not be convicted in this indictment; and, therefore, he directed an acquittal.”
The case before us can not be distinguished in principle from that of The People v. Saunders, 4 Parker C. C. 196, above cited.
There the defendant was indicted for a rape, and he pleaded that he had been convicted before a justice of the peace of an assault and battery upon the prosecutrix, and fined $20, and sentenced to imprisonment for thirty days in the county jail, in case the fine was not paid, and that he had paid the fine; that the assault and batteiy of which he had been so convicted was the same assaulting, beating and carnally knowing the prosecutrix charged in the indictment, and was one and the same assault and battery, etc. This plea was held bad. The- court said, among other things, as follows: “ There is another reason why the pleas must be held void. The plea of autrefois convict admits the of-fence charged in'the indictment, and as these pleas admit the crime of rape against the defendant, he could not be convicted of assault and battery, for the misdemeanor was merged in the felony.” A number of authorities are cited upon the point.
[229]*229In 1 "Wharton Grim. Law, at section 566 above cited, the author says:
“ Even where the first trial is for a misdemeanor, and the second for a felony, the test holds good that the plea is sufficient if the evidence requisite to support the second indictment must necessarily have supported a conviction on the first. Where the doctrine of merger obtains, the evidence of the consummated felony would have secured an acquittal on the first indictment, and such acquittal would have been no bar. Thus, it has been said, that where on an indictment for an assault to rob, murder, or ravish, the felony turned out to have been completed, the defendant’s acquittal, which the court would have been bound to direct, would have been no bar to an indictment for the felony.”
In Severin v. The People, 37 Ill. 414, the court, without entering upon any lengthy discussion of the question, said:
“ If an indictable offence has really been committed, we apprehend this conviction for a simple assault and battery can not be pleaded in bar of a prosecution for such offence.”
Assuming, as we must, for the purposes of the question involved, that the appellee was guilty of assault and battery with the intent charged in the indictment, he was not guilty of the simple assault and battery to which he pleaded guilty, as that offence was "merged in the felony; and it was his own fault that he was convicted thereon. By a proper defence he could have successfully resisted that prosecution ; and, as by that prosecution he was not put in jeopardy regarding the felony, that conviction is no bar to the prosecution for the felony. And, as we have already seen, upon the trial of the cause upon the indictment, the appellee can give in evidence the former conviction; and, in ease the court or jury trying the cause should find him not guilty [230]*230of the intent charged, thus leaving the assault and battery a simple one, uncoupled with the felonious intent, the former conviction will be a bar to the prosecution for the simple assault and battery.
We have some statutory provisions that may be supposed to have some bearing upon the question involved, which we proceed to consider. Thus it is provided in sec. 14, 2 R. S. 1876, p. 419, that, “ on an indictment for an assault and battery with an intent to commit a felony, the defendant may be convicted of a lesser offence.” This, and perhaps some other provisions yet to be noticed, were intended to meet cases where the evidence should not establish the felony, but should establish the less offence, as the assault and battery in cases where that is charged with an intent to commit a felony. A conviction of the less offence could not have been had, without the statute, upon such indictment; hence the statute. Gillespie v. The State, 9 Ind. 380.
On page 389 of the same volume are the following provisions :
“Sec. 72. Upon an indictment for an offence .consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offence.
“ Sec. 73. In all other cases the defendant may be found guilty of any offence, the commission of which is necessarily included in that with which he is charged in the indictment.”
The object of all these provisions was to authorize a conviction of the less degree of offence, or of an offence which is necessarily included in that which is charged, where the evidence establishes the less, but does not establish the greater offence.
They can have no bearing upon the case before us ex[231]*231cept to show that, upon the trial of this cause, the defendant may he acquitted of the felonious intent charged, and convicted of the simple assault and battery, unless h'e shall establish the former conviction pleaded by him.,
Then on page 402 we have the following section :
“ Sec. 10. When the defendant has been convicted or acquitted upon an indictment for an offence consisting of different degrees, the conviction or acquittal shall be a bar to another indictment for the offence charged in the former, or for any lower degree of that offence, or for an of-fence necessarily included therein.”
The section last quoted' is but the complement of the previous ones, and its provisions would probably have legally resulted from the others without express enactment. If one is put upon trial for a given offence, on which he may be convicted of a less degree of offence than that charged, or of an offence necessarily included in that charged, he is put upon trial not only for the offence charged, but for the less degree, or the offence necessarily-included in that which is charged; and it would seem, oft general principles that an acquittal or conviction should bar another prosecution.
The section, however, throws no light upon the question here involved. It provides simply for the effect of an acquittal or conviction in cases where the defendant is charged in the indictment with the higher offence consisting of grades, or which necessarily includes another offence.
No inference can be drawn from that, or any other provision of the statute that we are aware of, of a legislative intent, that when one is put upon trial for a misdemeanor, and the offence turns out to be a felony in which the misdemeanor is merged, he may nevertheless be convicted of the misdemeanor, or that such conviction, if had, would bar a prosecution for the felony.
[232]*232The judgment below is reversed, with costs, and the cause remanded, with instructions to the court below to sustain the demurrer to the plea.