The controlling question this record presents is whether a party who being plainly guilty of a felonious assault, by cutting and wounding another with a knife, but prosecuted by the prosecuting attorney before a justice of the peace on an information charging only a common assault, and convicted thereof, can afterward be put upon trial on an indictment charging him with a felonious assault and again convicted.
There is no doubt that a prosecuting attorney after an indictment has been found for an offense, may elect to prosecute for a lower grade of the same offense, necessarily included within the same offense. There is no statute on this subject, but the power is inherent in the state’s officer thus to nolle any portion of an indictment. State v. Moxley, 115 Mo. loc. cit. 651, and cases cited.
Under the like reasoning, the prosecuting attorney may, in the first instance, file an information charging a person guilty of a less offense than that for which he should have been charged.
Section 23 of article 2 of our constitution has been cited as applying to this case, but it does not, as that *644section only applies, so far as concerns the point in hand, to cases where “a person after being acquitted by a jury,” etc., the convention of 1875 not deeming it necessary to make provision for cases where conviction should occur.
Our legislature, however, more thoughtful, has made distinct provision for cases where either conviction or acquittal occurs on an indictment and the word indictment as there used may well be regarded as a generic term embracing an information.
But in any event, no court of justice should tolerate the idea that a person convicted of a less offense should again be put upon trial for a greater offense in which is included the same facts as in the former case. This is always the case unless collusion be shown.
In this view of the matter, it becomes unnecessary to discuss various errors assigned for a reversal of the judgment, but it may be mentioned in passing that a trial by jury should have occurred on the plea of former conviction interposed by defendant. State v. Huffman, ante, p. 58.
Inasmuch as defendant had been convicted of a common assault, and had paid his fine ($2.50), he could not be indicted and tried for a higher degree of the same offense. We therefore reverse the judgment and discharge the defendant.
All concur.