Territory of Hawaii v. Schilling

DISSENTING OPINION OF

FREAR, C.J.

The principal question is whether 'a conviction of assault and battery is ■ a bar to a subsequent prosecution for assault with *270intent to commit rape, the transaction being the same in both cases. The provision of the federal Constitution that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb” and the decisions of the federal supreme court control, so far as they go. That court, as I construe its decision in the case of Nielsen, 131 U. S. 176, has adopted a principle which requires us to hold that the plea of former conviction should be sustained in the present case. If our statutes are not as broad as the Constitution in this respect, so much the worse for the statutes; if they are broader, so much the better for the defendant.

The Nielsen case, indeed, as will appear below, goes further than we are required to go in this case in order to sustain the plea. Moreover, the question is even simpler than as above stated. A reflection or two will show that it may be so .simplified that to'ash it is to answer it in the affirmative. For, since our statutes permit a verdict of assault alone as well as of assault and battery under a charge of the latter, there was, as everywhere held, jeopardy of the assault as well as of the combined assault and battery, whether there was a conviction or an acquittal, and therefore the element of battery may be eliminated; the same result follows in this particular case, irrespective of the statute, because the defendant was in fact convicted of the assault and battery, and, as also everywhere held; such conviction was a conviction of the assault as well as of the battery. Therefore, the question narrows to this at least, whether a conviction of assault alone bars a subsequent prosecution for the same assault with a particular intent. To go a step further, the object of the prosecution for the assault with the particular intent was to obtain a conviction, and since a conviction of an assault with a particular intent is a conviction of the assault as well as of the combined assault and intent, just as a conviction of assault and battery is a conviction of the assault as well as of the combined assault and battery, iff follows that to allow the defendant to be convicted of the assault with intent to commit rape would be to allow him to be convicted a second time of *271the identical offense of which he had already been convicted, namely, the assault pure and simple. This opinion might well end here but for the fact that a question of important constitutional right is involved and the intricacies of the law upon this subject are such as to require a fuller statement in order to meet what at first impression might seem plausible reasoning for an opposite conclusion.

It goes without saying that in order to be the “same offense” the offenses must be the same in both law and fact. It is obvious that such is the case here, for the assault in both the assault and battery and the assault with intent to commit rape is the same act in fact and the same offense in law. As said in Bell v. State, 103 Ga. 397 (30 S. E. 294), in which a conviction of assault and battery was held a bar to a prosecution for assault with intent to commit rape, “as a matter of law and of fact, assault is always a part of such crime” (assault with intent to commit rape). But, though this test seems clear enough in this particular case, where the offense (assault) has the same name in law as well as being the same act in fact in both prosecutions, it is after all a generality — a mere statement in different form of the constitutional provision — which does not always assist much, for the question still remains, what offenses are the same in law and fact. A number of rules have been adopted for the purpose of determining this.

What is said to be the rule most generally applied is that the facts set forth in the second indictment must be such as would if proved warrant a conviction under the first indictment. “The number of instances in which in almost every jurisdiction this test has been recognized or applied renders the citation of all these cases impossible, and but a few from each jurisdiction will, therefore, be given.” Note to People v. McDaniels, 137 Cal. 192, in 92 Am. St. Reps. at page 105, citing a page of eases in support of this rule. This note of seventy pages contains the most careful as well as the most complete review of the law and the cases on this subject that has come to my notice. See also, to the same effect, 12 Cyc. 280, and 17 Am. & Eng. *272Ene. of Law 597, each citing numerous cases. Under this rule also the present plea in bar is good because the facts alleged in the second indictment would warrant a conviction of the assault, if not the battery, under the first indictment or complaint. At page 598 of the authority last mentioned, the rule is stated in different language as follows, the parts in parentheses being mine: “The rule that the doctrine only applies where the two prosecutions are for the same crime must be taken with this qualification, that where one crime (assault) is included in and forms a necessary part of another (assault and battery) and is but a different degree of the s'ame offense (assault and battery), and where on a prosecution for the higher crime (assault and battery) a conviction may be had (as under our statutes) for the lower (assault), then a conviction or acquittal for the higher (assault and battery) will bar a prosecution for the lower (assault) or for any crime (assault with intent to commit rape) of which the lower (assault) is an essential ingredient.” Some cases, as, for example, the Nielsen case, go further and hold the same even when there could not be a conviction of the lower (assault) on a prosecution for the higher (assault and battery). This rule, however, though infallible as to all cases to which it applies, and applicable to most cases of this nature, is not applicable to all cases, for in some cases there may have been jeopardy for the same offense if the facts alleged in the first indictment are such as would if proved warrant a conviction under the second indictment, and under some circumstances even if the facts alleged in either indictment would not authorize a conviction under the other. This is generally recognized.

Another rule is that the offenses are the same if the transaction is the same. But this is not always a correct test, for-the same transaction may constitute more than one offense in law. Eor instance, a sale of intoxicating liquor without a license to an intoxicated minor on Sunday might constitute the different offenses of selling without a license, selling to a minor,. *273selling to an intoxicated person and violating the Sabbath. Such offenses are entirely different in their character; and the common element, selling, is not in itself an offense. No one of' these offenses necessarily includes any other, nor do any two-include a common third offense.

The rule adopted by the majority of the court in this caséis that there has been no jeopardy for the same offense unless-the law permits under the second indictmnt a conviction of the offense, or some offense included in the offense, charged in the-first. Under this rule it is immaterial that one offense is • included in the other or that both offenses include the same third-, offense, or that the facts necessarily alleged in, or the evidence ■ necessary to support, the second indictment would warrant a conviction under the first, or that the transaction was the same, so long as under the second indictment there cannot be a conviction of the offense, or a common included offense, charged" in the first. Undoubtedly, if under the second indictment there.may be a conviction of the offense charged in the first, a conviction under the first is a bar to a prosecution under the second, but the converse, which is the rule of the majority of the court, is a very different thing. Indeed, the majority reverses not only this but also the rule above set forth as the one almost" universally held, namely, that the offenses are the same if the-facts in the second indictment would convict under the first;for, as I construe its decision, it holds in effect that the facts in the first indictment must he such as would authorize a conviction under the second or that the facts in the second must warrant a conviction under the second of the offense charged in the ■ first. It must, moreover, logically go still further and hold that the facts in each indictment must warrant a conviction under the other; for, the doctrine of former jeopardy implies two jeopardies, and, therefore, to illustrate, if there is no jeopardy for assault under a prosecution for assault with intent to commit rape unless there can be a conviction of the assault alone, there can also be no jeopardy of assault under a prosecu*274tion for assault and battery unless there can be a conviction -of the assault alone, and consequently if the law did not permit .-a conviction of the assault alone under a prosecution for assault and battery and there was therefore no jeopardy for the assault, there could be a subsequent prosecution for the assault with intent to commit rape even though there could be a conviction of the assault alone under that charge — which would be startling. If the rule of the majority is correct, many of the ques"tions arising out of this subject that have perplexed courts ■ could easily be solved by a reference to the statutes; and legislatures, by not permitting convictions of included lesser offenses 'under charges of greater ones, could, in spite of the constitutional guaranty, permit a person to be prosecuted, convicted and punished successively for many offenses of different degrees or grades though of the same general character and comprised in the same transaction. For instance, in so far as convictions might happen not to be permitted of one of the following -offenses under a charge of another, there might be successive prosecutions and convictions of simple assault, assault and ■battery, assault with intent to ravish, assault with intent to rob, assault with intent to kill, manslaughter, murder, etc., etc., 'though only one act was committed. Again, under the majority rule, the offense first charged would always have to be either the same as or greater than some offense for which there could be a conviction under the second charge, and the majority even state, in substance, in its endeavor to reconcile with its rule the rule above stated as the rule generally applied, that the latter rule requires that all the evidence necessary to support the second indictment must be admissible under the first indictment; for example, that it is not sufficient that part of the evidence necessary to prove a charge of assault with intent to commit rape would be sufficient to convict of assault under a charge of assault and battery, but that all the evidence, including that showing the intent to commit rape, must be admissible under the charge of assault and battery in order to prove the assault; in other words, that a conviction of a lower offense cannot be a *275bar to a prosecution of a higher offense. If that is so, then the vast majority of cases, of which several are cited in the majority opinion but which they decline to follow, are incapable of explanation except on the theory that they are wrong. See authorities supra; also 1 Bish., New Crim. Law, Sec. 1057, from which I quote the following: “A jeopardy of the highest is equally a jeopardy of the lowest. And since the government confessedly cannot begin with the highest, and then go down step by step bringing the man into jeopardy for every dereliction included therein, neither can it begin with the lowest and ascend to the highest with precisely the same result. Some apparent authority, therefore, English and American, that a jeopardy for the less will not bar an indictment for the greater, must be deemed unsound in principle. And even in authority, the doctrine which holds it to be a bar is sufficiently established in general.”

Courts have applied the rule of former jeopardy liberally with a view to preventing persecution. Eor instance, the constitutional guaranty is in terms limited to jeopardy of “life or limb,” thus preserving the language of times when nearly all offenses were punishable with death or dismemberment, but it is construed as stating a principle rather than a rule and so under present conditions is extended to jeopardy of liberty as well. It is now also, as already stated, almost universally held that it is immaterial which offense is prosecuted first when they are of different grades and the greater includes the less. A conviction of the greater bars a prosecution for the less, whether there could be a conviction of the less or not under the same indictment, because the great includes the less and a conviction and punishment for the greater is a conviction and punishment for the less. It is equally true that a conviction or acquittal of the less bars a prosecution for the greater, for the acquittal of the less shows that the defendant could not have committed the greater and the conviction of the less cannot be repeated in a conviction of the greater. It is reasonable to hold that an acquittal of the greater, when no conviction for the less could be had under the same indictment, does not or might not bar a *276prosecution for the less, but it is different with a conviction. For instance, there might well be successive prosecutions for assault with intent to ravish, intent to murder, intent to rob',, etc., so long as there were acquittals because of failure to establish the particular intent, if there could be no conviction and therefore no acquittal of the assault alone without the particular intent, but a conviction of any one of these offenses ought to bar a prosecution for the others whether there could be a conviction of simple assault under the same indictment or not. In the jDresent instance the defendant has been convicted of the assault (included in the assault and battery) and under the statute he might have been either acquitted or convicted of the assault alone if the battery had not been proved. He ought not to be again put in jeopardy of imprisonment for the same assault merely because he made it with a particular intent. The Territory had its election as to which charge it should prosecute first and having made its election and obtained a conviction,, it should not be permitted to pursue the defendant a second time for the same assault under the other charge. The majority of the court, as it seems to me, do not attach sufficient weight to either the fact that on the first charge the defendant could under the statute have been (acquitted or) convicted of an essential element, which was an offense itself, in the second charge or the fact that, even if there were no such statute, the defendant was convicted (not acquitted) of the first charge,, which included the essential element, an offense itself, in the. second charge.

The doctrine of former jeopardy is not identical in all respects with that of former acquittal or conviction, although the two are based to a large extent upon the same principle and are often confused. Former jeopardy, of course, may have occurred whether there was an acquittal or conviction or not. Former acquittal or conviction involves to some extent the law of res judicata,. If under a charge of either assault and battery or assault with intent to commit rape there could be a verdict of assault alone it is obvious that either an acquittal *277or a conviction under either charge would bar a subsequent prosecution under the other. If, however, as is the case under our statutes, there could be a conviction of assault under the charge of assault and battery but not under the charge of assault with intent to rape, an acquittal under the latter would not or might not bar a prosecution under the former, for such acquittal might have resulted from the absence of the intent to commit rape and not from failure to prove that the defendant committed the assault and so might be entirely consistent with a conviction of assault or assault and battery; but a conviction of the assault with intent to commit rape would bar a prosecution for the assault and battery, for the conviction would be for the assault included in the assault with intent as well as for the assault with intent, and to punish the defendant for the assault and battery also would be to punish him twice for the same assault. Either an acquittal or a conviction under the charge of assault and battery, however, would bar a prosecution for the assault with intent to commit rape, for the acquittal would be an acquittal of the assault as well as of the assault and battery, and of course the conviction would be a conviction of the assault as well as of the battery. Accordingly, a correct test,, as far as it goes, and one which is applicable to the present case, is that where the transaction is the same and constitutes two different offenses which have in common an essential and principal element which is itself an offense, a conviction of either greater offense (or a conviction or acquittal of the common included offense) bars a subsequent prosecution for the other greater offense (or for the included offense), even though a conviction of such included offense alone is not permissible under the statutes upon a prosecution for either greater offense, and although an acquittal on a prosecution for either greater offense would not or might not constitute a bar to a subsequent prosecution for the other greater offense (or for the included offense). In the present case, as already stated, the transaction was the same; the defendant was convicted of the assault and battery, that is, of the assault as well as of the battery, and therefore cannot be *278prosecuted for the assault with intent to commit rape, which includes the same assault.

This is the principle, as I understand it, upon which the Nielsen case above referred to was decided, though in that case strictly speaking the included common essential element did not itself constitute an offense. It is true there was a federal statute to the effect that in all criminal cases the defendant might be found guilty of any offense necessarily included in that with which he was charged, but that statute not only was not referred to by the court but was not applicable to that case. The decision was based on general principles. The question was whether the defendant could be tried for adultery after a conviction of unlawful cohabitation. It was held that the conviction was a bar because an essential and principal ingredient (sexual intercourse) of adultery was included in the unlawful cohabitation, although neither the facts required to be alleged in the indictment for the unlawful cohabitation nor the evidence necessary to sustain the indictment would authorize a conviction of adultery or of that essential ingredient, which was not itself an offense. Indeed, as stated in 11 Am. & Eng. Enc. of Raw 599, under neither indictment could there have been a conviction of the offense charged in the other or of the common essential element, for sexual intercourse or fornication was not an offense under the federal statutes, and proof of marriage was necessary under one charge and not under the other, and proof of a single act of intercourse was sufficient under one and not under the other. The court cited with approval the statement in Morey v. Commonwealth, 108 Mass. 435, to the effect that a conviction of being a common seller of intoxicating liquors would, although an acquittal would not, bar a prosecution for a single sale — which is in line with the rule above referred to as the correct general rule — but in regard to the actual decision in the Morey case, which was that a conviction of lewdly and lasciviously associating and cohabitating did not bar a prosecution for adultery, the court expressed the view that that (the Morey) case was distinguishable from the case then under consideration *279on the ground that sexual intercourse was not an essential ingredient of lascivious cohabitation, as it was of unlawful cohabitation, but added, “be that as it may, it seems to us very clear that where, as in this case, a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of these incidents without being twice put in jeopardy for the same offense.” The court also, after quoting passages from Wharton on Criminal Law, which seem at first view to point in the opposite direction, distinguished between cases in which a conviction of a less crime might be had on a prosecution for a greater, and cases in which a conviction for the less could not be had under a prosecution for the greater, as follows: “It will be observed that all these instances are supposed cases of acquittal; and in order that an acquittal may be a bar to a subsequent indictment for the lesser crime, it would seem to be essential that a conviction of such crime might have been had under'the indictment for the greater. If a conviction might have been had, and was. not, there was an implied acquittal. But where a conviction for a lesser crime cannot he had under an indictment for a greater which includes it, there it is plain that while an acquittal would not or might mot be a bar, a conviction of the greater crime would, involve the lesser also, and would be a bar.” The court then by way of illustration referred with approval to the “much cited” case of State v. Cooper, 13 N. J. L. 361, in which it was held that a conviction of arson would bar a subsequent prosecution for murder which was the result of the arson. Both the New Jersey case and Nielsen case go further than we are required to go in the present case,.for in the present case not only could there be a conviction of the common lesser offense under the first prosecution but the two greater offenses necessarily in law as well as in fact and as necessarily shown on the very face of the indictments and by the very names of the offenses possess a common element or ingredient (assault) which also is an offense in itself. The very fact that there may be a difference in the result according as there is an acquittal or a conviction, *280as rcognized in both, the Morey and Nielson cases, shows that the possibility or impossibility of conviction of the same or an included offense under either charge is not a universal test, for when there is such possibility of conviction it is immaterial, as shown above, whether there .was an acquittal or a conviction.

The majority of the court attempts to show that the court in the Nielsen case did not intend to hold contrary to the Morey case, and relies principally on the Morey case and on Commonwealth v. Roby, 12 Pick. 496, and People v. Saunders, 4 Park. Cr. Cas. 196, and declines to follow a number of cases which it refers to as holding differently.

As to the Nielsen case, I have shown that its decision as well as its unequivocal statement of the law is against the view of the majority in this case, and that, while it approved certain statements in the Morey case, which were in line with the general rule above contended for, it distinctly said that the decision itself, upon which the majority now rely, but which, in my opinion, does not support them, was either not applicable or, if it was applicable, that it was erroneous. Indeed, the M\orey case was, as the court said in the Nielsen case, the principal case relied on for the prosecution, but the court decided against the prosecution.

As to the Morey case itself, enough was said in the Nielsen case. But I may add that that case, as I understand it, is not at all inconsistent with my views in this case.

As to the Roby case, which, I understand, is the one most relied on by the majority, many things may be said, but these will suffice: As to its actual decision, it was correct, for it was that a conviction of assault with intent to murder does not bar a subsequent prosecution for murder when the person assaulted -does not die until after the defendant has been convicted of the assault.. In such case there is no offense of murder and therefore there can be no prosecution for murder, until after the conviction of the assault. Such a case is always regarded as an exception to the general rule above, stated that it is sufficient if the facts in the second indictment would if proved warrant a *281conviction under the first, and the Roby case itself is one of the principal cases that are usually cited as coming within the exception and not the rule. It is so referred to by text writers, other courts and the same court that decided it. See 1 Bish. New Cr. Law, Sec. 1059; Note, 92 Am. St. Reps. 140; 17 Am. & Eng. Enc. of Law, 600; 2 Van Fleet, Form. Adj. 1218; State v. Littlefield, 70 Me. 158; Commonwealth v. Evans, 101 Mass. 21. This is an exception of the kind that proves the rule. As to the reasoning, apart from the decision, in the Roby case, the court expressly stated the rule I contend for to be the correct rule and proved it in a very satisfactory manner by reasoning, illustrations and citations. But when it came to apply it, it expressed itself rather ambiguously. It cannot be denied, however, that the court used some language to the effect that the evidence under the second indictmnt would not justify a conviction under the first. If by that it meant that there could be no proof of the murder at the trial of the assault, because there had been no murder up to that time, it was correct; but if it meant that as a general rule the evidence which would prove murder would not, so far as necessary, be admissible or sufficient to justify a conviction under a charge of the assault that resulted in the murder, it was wrong, as stated in effect in Van Fleet, ubi supra, and held in numerous cases. What the court evidently meant was that, as it said, murder and assault with intent to murder were “offenses distinct in their nature, of a distinct legal character. * * * The facts are essentially different, and the legal character of the crime (murder) essentially different” and it based this conclusion partly on the ground that the death occurred after the conviction of the assault and partly on the old doctrine of the merger of a misdemeanor in a felony, of which more will be said below. But, as shown above, the first of these grounds brought that case within a well established exception to the rule, and so the case supports my view, inasmuch as the present case is within the rule and not the exception; and, as to the second ground, likewise, since the doctrine of mergex’, as correctly held by the majority of the *282court in the present case, does not obtain in this jurisdiction, we are obliged to come to the opposite conclusion and hold as I do here. The doctrine of merger has now been held to be abolished by statutory implication in Massachusetts also, and of course the Roby case would not now be followed there. Seethe Morey case, supra, and cases infra.

As to the Saunders case, in which it was held that a conviction of assault and battery did not bar a prosecution for rape, which is not precisely like the present case, the decision was based in part on various views now generally considered unsound and on the doctrine of merger, which, as already stated, does not hold here. In State v. Shepard, 7 Conn. 54, on the other hand, where, as here, the doctrine of merger does not exist, it was-held that a conviction of assault with intent to commit rape would bar a prosecution for rape. And in Massachusetts, where the Roby case was decided, it is held, now that the doctrine of merger no longer obtains there, that on a charge of either rape or assault with intent to commit rape there may be a conviction of a simple assault. Com. v. McCarty, 165 Mass. 37; Com. v. Creadon, 162 Id. 466. Of course under statutes such as they have in Massachusetts and most other jurisdictions, a conviction of assault and battery would bar a prosecution for assault with intent to'commit rape, but this is equally true on sound principle in the absence of such statutes. In addition to the Connecticut case, supra, the following cases support this view, all of them having been decided on general principles, irrespective of statutes. In State v. Blevins, 134 Ala. 213 (32 So. 637), it was held that 'a jeopardy of conviction, though the case was not prosecuted to conviction, under a charge of assault and battery, barred a prosecution for the same assault with intent to commit rape. The court said, among other things: “If the defendant had been convicted for the assault and battery, it would not for a moment be contended that he could again be tried for the assault with intent to ravish.” The same was held in Bell v. State, the Georgia case cited in the early part of this opinion. In State v. Smith, 43 Vt. 324, it was held that á con*283vietion of assault with intent to commit rape would bar a prosecution for rape. In Com. v. Arner, 149 Pa. St. 35, it was held that jeopardy of a conviction of fornication barred a prosecution for rape. These cases were decided on the broad principle that, to quote from the case last cited, “a verdict of acquittal or conviction on an indictment for the minor offense, is a bar to a trial on an indictment for a crime which includes it.”

This brings me to my last point — under whch, by the reasoning of the majority opinion itself, it should have come to the opposite conclusion. That opinion is based on the view that under an indictment for assault with intent to commit rape there could not be a conviction of assault because the statute did not expressly permit it. If that view is erroneous, as I will endeavor to show it is, the reasoning based on it requires the opposite conclusion. In many states there are such statutes and they are often referred to by the courts. In others it is stated that there may be convictions of lesser included offenses under indictments of greater offenses, but without referring to statutes. In others, it is stated that there can be no such conviction in the absence of statute where the less offense is a misdemeanor and the greater a felony — in other words, where the doctrine of merger prevails, as it does not here. Under that doctrine a misdemeanor utterly disappears in the felony, just as a life estate in property disappears and no longer has any existence when it unites with the fee in the same person. Thus, if on a trial for misdemeanor the evidence showed a felony there could be no conviction, because there was no misdemeanor; and if the evidence did not show a felony and there was a conviction of the misdemeanor it would not bar a prosecution for the felony, because if there was a felony in fact there could have been no misdemeanor and therefore no legal conviction of a misdemeanor. So, on a charge of felony, if the evidence showed only a misdemeanor, no conviction could be had of the misdemeanor because a misdemeanant at common law was entitled to certain privileges which felons did not have, such as the right to counsel, a copy of the indictment and a special jury. 20 Am. *284& Eng. Enc. of Law, 2nd Ed. 602. Rut the grounds for these distinctions no longer exist, and the doctrine of merger has been generally discarded by statute or judicial decision. Id. 604. Even at common law there was nothing to prevent a conviction of an included felony under a charge of a greater, or an included misdemeanor under a charge of a greater, though there could be no conviction of a misdemeanor under a charge of a felony. Id. 601. Consequently, at common law except as between felonies and misdemeanors, and now in all cases in jurisdictions where the doctrine of merger has been abrogated, there may be a conviction of any included offense under a charge of the greater where the allegations are so drawn as to cover the included offense. This is not because of statutory authority but because the less as well as the greater offense is charged. It is unnecessary to name the offense. The allegations determine what it is. What is not proved may be regarded as surplusage. The effect of statutes, which are relied on by the majority of the court, is merely to abolish the doctrine of merger as between felonies and misdemeanors. That doctrine being out of the way, there is nothing to prevent a conviction of a misdemeanor under a charge of a felony just as there is nothing, where that doctrine is held, to prevent a conviction of a less felony or misdemeanor respectively on a charge of a greater. Here in Hawaii, the doctrine of merger having never obtained, no such statute is necessary and in many jurisdic-' tions that doctrine has been abolished by judicial decision. Allegations sufficient to show an assault with intent to commit rape necessarily show an assault. Therefore there could be a conviction of the latter on a charge of the former. Since the opinion of the majority depends entirely on the view that there cannot be a conviction of assault under a charge of assault with intent to commit rape in the absence of a statute expressly permitting it, then, if, as I believe, that view is erroneous, their reasoning requires the opposite conclusion. That no statute is necessary where the doctrine of merger does not hold, see the Connecticut, Alabama, Georgia, Vermont and Pennsylvania *285cases, supra, and, in general, 1 Bishop, New Cr. Proc., Secs. 416-419; 1 Bishop, New Cr. Law, Secs. 780, 794, 795, 804-808; 2 Id. Sec. 56.

In view of the opinion of the majority of the court it will be unnecessary for me to express an opinion as to whether, aside from the question of identity of offenses, the alleged former conviction is not a bar on the ground that there was no former jeopardy because, as contended, assault and battery was at the time of such conviction an infamous offense and therefore beyond the jurisdiction of the district magistrate who tried that case.