I concur in the foregoing opinion.
Tompkins, J.The Presiding Judge having made a statement of this case, it is unnecessary that I should make one. The cause was argued at the April term of this'C'ourt for the last year, and was continued under advisement in order that if a similar case should be brought up in any other of the districts, this Court might have the advantage of additional argument. No other case of the kind has been brought before the Court, although by the failure to hold a Court here in December last, this cause has stood over till the present term j this is the more to be regretted as the counsel who argued the cause had but a short time to prepare, and But few authorities to consult; little more then can be expected in this opinion than the conclusions which under such circumstances I have drawn. Since the decision of the case of the State v. Stein, my confidence in the correctness of the- opinion then delivered, has been much impaired; and the act of Assembly, passed since that time, declaring that no assault and battery shall be held and considered an indictable offence, and that the same shall be tried in a summary mode, before a Justice of the Peace, removes still more of the doubt which I entertained of the constitutionality of the act under which Stein was indicted. In all cases where it does not plainly appear that an act of Assembly is-unconstitutional, I deem it the duty of a Court to decide that it is constitutional, and. to carry it into effect. Under such impressions I am of opinion that the judgment of the Circuit Court ought to be affirmed.