delivered the opinion of the court.
Tlie indictment in this case charged that the appellee “ did, in sudden heat and passion, without previous malice, and not in self-defense, strike and wound George Gregory with a pair of blacksmith’s tongs, which said tongs was then and there a deadly weapon.”
The appellee, in a plea of former conviction, alleged that he had been arrested and tried and convicted before a justice for a breach of the peace, committed by fighting with George *604Gregory, and had paid the fine assessed against him, and that said conviction was for the identical acts charged in the indictment.
A demurrer to the plea having been overruled, the commonwealth confessed the facts stated therein, and the indictment was dismissed, and this appeal is prosecuted to obtain a reversal of that judgment;
■ The indictment does not state facts constituting an offense within section 1, article 17, chapter 29 of the General Statutes. That section only applies to wounds inflicted by shooting, or by cutting, thrusting, or stabbing with a knifé, dirk, sword, or other deadly weapon, and does not embrace a wounding such as is charged in this case.
■ The indictment was therefore good only as an indictment ' for an assault and battery, and the question is whether a conviction for a breach of the peace is a bar to a subsequent prosecution for an assault and battery constituting a part of the transaction ?
This question came before this court in 1837 in The Commonwealth v. Miller (5 Dana, 370), and it was then held, though not without some hesitation, that conviction for a breach of the peace, unless obtained by the fraud or collusion of the party pleading, was a bar to an indictment for an assault and battery committed in the breach of the peace for which the defendant had been fined.
Since that time the subject has been repeatedly passed upon by courts of last resort, both in this country and England, and we think the decided weight of authority is in accord with the former decision of this court.
The breach of the peace for which the appellee was tried is ■a distinct offense from that of assault and battery for which he was indicted, but was embraced in the latter because there can not be an assault and battery without a breach of the peace.
The breach of the peace being included in the assault and *605battery, It is impossible that the appellee should be convicted of assault and battery without being also convicted of the breach of the peace; and thus, as lie has already been found guilty of a breach of the peace, lie would be in jeopardy a second time for the same offense- — ■%. e., for breach of the peace— and if convicted and punished he would be twice punished for one offense, which is repugnant to both the common law and our own written constitution. (1 Bish. Cr. Law, sec. 683.)
Judgment affirmed.