delivered the opinion of the court.
If in the trial under the indictment for murder the appellant might have been lawfully convicted of the assault and battery charged in this case, his plea of former acquittal is good. At common law there could be no conviction for a misdemeanor on an indictment for felony. That is changed by Code 1880, § 3078, so as to authorize a verdict of guilty of the offence as charged, or of any attempt to commit the same offence, or of an inferior offence, or other offence the commission of which is necessarily included in the offence charged in the indictment. If an assault was necessarily included in the ciime of murder or manslaughter, a conviction for it might be had under an indictment for the felony, but “ there may be manslaughter as well as murder committed where there is no assault, no battery, no wound inflicted.” 2 Bish. Crim. Proc. § 538. And therefore assault and battery, or assault, is not necessarily included in a charge of murder of which an assault may or may not have been a constituent according to the circumstances.
Where an indictment for murder or manslaughter charges an assault and battery, or an assault, the verdict may be for either according to the proof, but under an indictment for murder or manslaughter in the form permitted by Code 1880, § 3016, it is not allowable to render a verdict for an assault and battery or an assault, neither of which is charged in terms by the indictment, or necessarily included in the offence charged. To warrant conviction the allegations of the indictment must embrace the offence, or it must be necessarily included in the offence specifically charged ; otherwise the prisoner might be found guilty and be punished without being accused of the offence of which he was convicted, which is not to be permitted. It is the constitutional right of the accused to demand the nature and cause of the accusation in all criminal prosecu*28tions against him, and he cannot be lawfully convicted of any offence not included in such accusation. 2 Bish. Grim. Proc. § 626 ; 1 Bish. Crim. Law, §§ 794, 798, 803, 809. If under the former indictment for murder, which did not contain an allegation of an assault and battery, but charged that the defendant did “ wilfully, feloniously, and of his malice aforethought kill and murder ” the deceased, the appellant had been found guilty of assault and battery or either, we would not have sustained such conviction, because of the absence of an allegation in the indictment of such an offence, and because it is not necessarily included in the offence which was charged, it being true that murder may be committed without an assault and battery, or either. It follows from these views that the demurrer to the special plea was properly sustained, and the judgment is Affirmed.