Concurring in Part and Dissenting in Part. — ■ I concur in that portion of the majority opinion which deals with the plea of former jeopardy, and which holds that such a plea raises an issue of fact which must be tried by the jury, that the plea has not been disposed of, that the conviction, therefore, cannot be sustained, and that the judgment entered is void. (Kinkle v. People, 27 Colo. 459, 62 Pac. 197; Solliday v. Commonwealth, 28 Pa. St. 13; Commonwealth v. Merrill, 8 Allen (Mass.), 545; People v. Kerm, 8 Utah, 268, 30 Pac. 988; State v. O’Brien, 19 Mont. 6, 47 Pac. 103; Grant v. People, 4 Park. Cr. Rep. (N. Y.) 527; State v. Thompson, 10 Mont. 549, at 561, 562, 27 Pac. 349.)
I dissent from that portion of the majority opinion which expresses a doubt as to whether a violation of C. L., sec. 673.2, is charged in the information, and particularly from that portion of the opinion which holds that the charging part of the information does not mention the elements of an assault as found in our statutory definition, and that it does not describe any means or force which was likely to produce great bodily injury.
The information does charge that appellant “did then and there wilfully, unlawfully and feloniously and intentionally commit an assault with his clenched fist and with great force and violence, likely to produce great bodily injury upon the person of another, to wit, the person of H. H. Cross, then and there being; ’ ’.
The foregoing allegations in the information, while subject to improvement, state the offense defined in sec. 6732. (People v. Perales, 144 Cal. 581, 75 Pac. 170; People v. Watson, 125 Cal. 342, 57 Pac. 1071; People v. Emmons, 61 Cal. 487; Keley v. State, 12 Tex. App. 245; Buchanan v. State (Tex. App.), 13 S. W. 1000; Yeary v. State (Tex. Cr. App.), 66 S. W. 1106.)
While the proof in a given case may or may not be sufficient, according to the circumstances thereof, to sustain a conviction of an assault with means or force likely to produce great bodily injury, where it is alleged that this means or *172force was the clenched fists of a defendant, the authorities hold that an information or indictment charging such an offense is sufficient as against a demurrer.
The remainder of the information, commencing with the words, “he the said” and ending with the words “illness therefrom, ’ ’ charges a battery. In other words, the information charges two separate and distinct offenses. While, as stated in the majority opinion, this question is not subject to review, for the reason that no exception was taken to the action of the court in overruling the demurrer, still, in view of the fact that this case should go back, in my opinion, for further proceedings, this observation is made. Battery is not 'an included offense. The cases hold that every battery includes an assault, but assault does not include a battery, and this is true regardless of the degree of the. offense. (People v. Helbing, 61 Cal. 620; People v. McDaniels, 137 Cal. 192, 92 Am. St. 81, 69 Pac. 1006, 59 L. R. A. 578.)
I concur in the conclusion that the judgment should be reversed, but I am of the opinion that the cause should be remanded for further proceedings in accordance with the views herein expressed.