DISSENTING OPINION.
Eakin, J.It seems to me that the principle announced, in this case subjects the party to two punishments for the same act; one for the assault, and the other for the maiming. This could not be done if he were indicted for the felony in the first instance. He has no means of preventing-the prosecution before the justice, and could not complain of the conviction for assault, as error, without appealing- and confessing himself guilty of the felony, which he might, not actually believe to be .true.
The Legislature has the power to control and fix the jurisdiction of justices, in cases of misdemeanor, and I think it the less evil (notwithstanding the very respectable authorities of other States), that it should be left to it, by proper-act, to provide against collusive charges of minor offenses, for the purpose of barring persecutions for greater, unless-the offenses be divisible, and separately punishable, or the nature of the crime be changed by subsequent consequences.
I therefore fail to concur in the opinion of the court rather fearing to open a door for the undue harrassment of suspected offenders, than doubting the power and will of' the Legislature to harmonize the general jurisdiction of" justices over minor offenses, with the due punishment of' those felonies which involve them.