The parties had been tried for the same offense before a Justice of the Peace, and fined. To the indictment found in the Superior (497) Court, they pleaded "former conviction." His Honor sustained the plea, and gave judgment, dismissing the charge; from which judgment Solicitor Sherrard appealed. The defence of a former conviction cannot be sustained. *Page 403 The act of 1868-'69, chap. 178, sub. chap. 4, by which Justices of the Peace were given jurisdiction finally to try certain petty assaults under circumstances was indirectly but effectually repealed by the act of 1870-'71, chap. 43, sec. 2, which says, that in all cases of assault the punishment may be by fine, or imprisonment, or both, at the discretion of the Court.
The Constitution, Art. IV., sec. 33, gives Justices jurisdiction of criminal matters arising in their counties when the punishment cannot exceed a fine of fifty dollars, or imprisonment for one month. The moment, therefore, that the Legislature removed the limitation on the punishment prescribed by the act of 1868-'69, and left it discretionary with the Court to exceed that limit, it took away the jurisdiction of Justices of the Peace over the offence.
Our opinion on this point makes it unnecessary to consider the other objections made to the former conviction before a Justice. They are, however, equally clear.
PER CURIAM. Judgment reversed and venire de novo.
S. v. Jones, 82 N.C. 670; S. v. Watts, 85 N.C. 518; S. v. Fespermen,108 N.C. 772; S. v. McAden, 162 N.C. 577.