State v. Locklin

59 Vt. 654

Opinion

The opinion of the court was delivered by

Ross, J.

The respondent’s plea sets forth another indictment for an assault upon Herman Hill,- of the same date with the one under consideration. The one under consideration is for an assault upon Martin Hill. The plea alleges that the assault chai'ged in the present indictment is “a part of one and the same breach ■ of the peace ” charged in the former indictment, for which he has been convicted; and that the assault charged in the present indictment was ‘ ‘ incident to and a part of the assault ” for which he has been convicted, and prays for a discharge from the present indictment. The allegations of the plea are admitted by the demurrer. The substance of the whole plea is that the. offense with which the respondent is charged in the present indictment is part of an offense for which he has been indicted and punished. As the whole includes all the parts, in legal effect, the plaa alleges that the respondent has been already punished for the offense charged in the present indictment, and this is admitted by the demurrer. Whether the plea is true, in fact, we have no occasion or right to inquire. If it is not, the State should have traversed it. As admitted by the demurrer, it, in legal effect, alleges that the respondent has already been punished for the very offense charged in the present indictment, in the conviction on the former indictment.

Exception sustained, judgment and sentence reversed, and cause remanded.