The defendant was indicted for an assault with a dangerous weapon, to wit, a pistol, with intent to inflict a bodily injury upon the person of another. Upon arraignment, he plead in bar a former conviction, and that he had once been in jeopardy for the same acts and offenses set forth in the indictment. The matter was tried before thecourt without a jury; and from an order sustaining the plea, and discharging the defendant, the Territory duly excepted, and appeals the case to this court.
In the case of the Territory v. Laun, 8 Mont. 328, we held that no appeal would be allowed from a question of fact and *9law within the discretion of the trial judge; that is, when there were two lines of fact, one of which was to be selected by the judge as representing the truth, as when there was a dispute as to what were the true facts, then it became necessary for the exercise of judicial discretion, and the Territory had no right to appeal from his ruling. In the present case there was no dispute whatever as to the facts which are offered in support of the plea, so the case does not fall within the rule laid down in the Territory v. Laun, as is contended by counsel for defendant.
The ease is before us upon a bill of exceptions, properly settled and signed, presenting only two questions — one as to the admissibility of evidence offered to sustain the plea, and the other as to the correctness of the ruling of the trial judge in sustaining the same, and discharging the accused.
While in a Butte saloon, the accused became engaged in an altercation with the saloon-keeper, and drew his pistol; but it does not appear that he used it in auy manner other than to display it in the presence of one or more persons in an angry, rude, and threatening manner. On the day following, he was arrested on a warrant from a magistrate’s court, prosecuted and convicted of the offense of drawing and exhibiting a deadly weapon in the presence of others in a rude, angry, and threatening manner, and paid his fine. Afterwards, when the grand jury convened, he was indicted for an assault with a dangerous weapon, to wit, a pistol, and with intent to inflict upon the person of Fulk, the saloon-keeper, a bodily injury.
In proving the prior prosecution, it became necessary to show the arrest, charge, trial, conviction, and sentence of the magistrate’s court; and to this end the magistrate before whom the trial took place was introduced as a witness on behalf of the defense. The record of his court was offered in evidence, and clearly shows the trial, charge, plea, sentence, and payment of fine by the defendant; but the affidavit or complaint of the deputy-sheriff was in some way lost, and the magistrate testified to the officer having made the complaint, its contents, and that it was sworn to before him, and that he had searched diligently for the complaint, but that it could not be found. The counsel for the Territory objected to the introduction of this oral testimony, but he has referred us to no law for its exclusion. The *10trial judge correctly overruled the objection, for the foundation had been sufficiently laid to prove the contents of the lost instrument. (Wharton’s Criminal Pleading and Practice, § 481.)
The next objection was to the introduction of the magistrate’s docket in the case of the Territory v. Stocker, on the ground that the docket shows the charge to have been made by one Fulk, whereas the magistrate had testified that the deputy-sheriff Fish had made the complaint upon which the defendant was arrested. This error was explained by the magistrate; Fulk having made the charge upon which the defendant was held to await the action of the grand jury, while the deputy-sheriff made the complaint upon which he was tried before the magistrate. There was no force in the objection, for it was immaterial who made the complaint; the question being as to the identity of the two offenses for which he was prosecuted.
Several rules are laid down by which the plea of former conviction and jeopardy may be tested, but we are unable to find any which would sustain the plea in the present case. While being prosecuted in the magistrate’s court for displaying a deadly weapon in a rude, angry, and threatening manner in the presence of others, the defendant was never in any danger of being convicted of an assault with a deadly weapon with intent to inflict bodily harm. Nor would the evidence to convict of the offense of displaying a deadly weapon in a rude, angry, and threatening manner necessarily convict of the crime charged in the indictment. The assault may have been made without any display of the weapon in the presence of another, and the display of the weapon might be made without an intention to assault or do bodily harm. It is obvious that the two offenses are not generic, and an assault with a deadly weapon with intent to do bodily injury does not necessarily include the offense of displaying a deadly weapon in the presence of one or more persons in a rude, angry, and threatening manner, and not necessarily in self-defense. The evidence of the major would not necessarily sustain a prosecution for the minor offense.
It frequently happens that several offenses are included in a single affair or crime. For instance, in the present case, it is entirely possible that the defendant may not only have displayed his pistol in the presence of others in a rude, angry, and threat*11ening manner, but be may have been guilty of carrying concealed weapons, and of an assault, and also of an assault and battery, as well as an assault with a deadly weapon with intent to do bodily harm. Now, upon a prosecution for the latter crime, he may have been convicted of an assault, but not of a battery. (Territory v. Dooley, 4 Mont. 295.) But we are unable to perceive how either carrying concealed weapons, or displaying them in a rude, angry, and threatening manner in the presence of one or morí persons, is necessarily included in the crime of an assault with a deadly weapon with intent to inflict bodily, injury upon the person of another.
By the law of the Territory, an indictment must charge but one offense, and the jury is authorized to find the defendant guilty of any degree inferior to that charged in the indictment, or an attempt to commit the same, or of any offense necessarily included in the crime charged. We find this question under consideration in the case of the Territory v. Willard, 8 Mont. 328, and we there held that section 313 of the Criminal Practice Act carried with it the implied permission to prosecute for any offense not necessarily included in a former charge.
Whether it is a proper practice to harass and annoy the accused by successive prosecutions for offenses growing out of the same transaction is a matter which addresses itself to the sound discretion of the prosecuting attorney, who will be governed by the circumstances. But it may be doubted whether, in these minor offenses, the interest of the public is best served by such a course.
The order sustaining the plea, and discharging the defendant, is reversed, at cost of respondent.
Blake, C. J., and Bach, J., concur.