It is not necessary to consider whether the respondent was lawfully bound over. It is sufficient that there was no trial in the police court upon the merits. Marston v. Jenness, 11 N.H. 156, 158; State v. Runnals,49 N.H. 498, 502; State v. Hodgkins, 42 N.H. 476. Upon this question the character of the order is conclusive. Commonwealth v. Harris, 8 Gray 470, 479. The hearing was only an examination to determine if there were probable grounds to hold the respondent to answer further. The police court must have ruled that the complaint sufficiently charged an aggravated assault, and, having no jurisdiction of such an offence, bound the respondent over. This did not constitute a conviction. United States v. Lumsden, 1 Bond 5, 7; Duffy v. Britton, 47 N. J. Law 251, 253; Gaffney v. Aldrich, 85 Mich. 138; State v. Jones, 16 Kan. 608, 610. There was no evidence to support the respondent's plea of former conviction, and his several motions were properly denied.
Exceptions overruled.
PEASLEE, J., did not sit: the others concurred. *Page 648