We concur with his Honor in the view taken by him of this case. The action of the Justice of the Peace was simply to impose a fine on the defendant for contempt in committing an assault and battery in his presence while trying a case, and did not include a trial, conviction and punishment for the misdemeanor of an assault and battery. The one is an offence against the public peace, and is against the peace and dignity of the State. The other is an offence against the dignity of the office of a Justice of the Peace, which he is allowed to protect, by punishment for contempt. The act of the defendant included these two distinct offences, and the Justice of the Peace imposed a fine of one dollar for contempt. It follows that the defendant did not establish his plea of "former conviction and punishment."
If an assault and battery be committed in the room of the Superior Court, while in session, and the Judge imposes a fine on the party or sends him to jail, it would not occur to any one that this could be pleaded in bar of an indictment for assault and battery, for the Judge had no power to convict and punish for the misdemeanor, except upon a bill of indictment found by a grand jury, and passed on by a petit jury; and the action of the Judge will be taken to be a punishment for the contempt only. So in our case, the action of the Justice of the Peace must be taken to be a punishment for the contempt only. For the Justice had no jurisdiction to try and punish the defendant for the misdemeanor, "unless it shall appear on the complaint, and upon proof before him. 1st. That the offence was committed within his township; 2d. That the complaint is not made by collusion with the accused, and that it is made by the party injured by the offence; 3d. That it is made within six months after the commission of the alleged offence. The complaint shall be in writing and under *Page 381 oath, but need not be in any particular form." Act 1868'-69, Bat. Rev. chap. 33, sec. 116.
Here there was no complaint in writing under oath, negativing "collusion with the accused," which is necessary in order to confer jurisdiction. SeeState v. Johnson, 64 N.C. 581; State v. Harris, 65 N.C. 301.
There is no error.
PER CURIAM. Judgment below affirmed.