#### STATE v. R. C. HEIDELBURG, H. D. POTTER and another.

The Act of 1868-69, cliap. 178, by which Justices of the Peace were given jurisdiction finally to try certain petty assaults under certain circumstances, was repealed by the act of 1870-71, chap. 48, which says that in all cases of assault the punishment may be by fine or imprisonment, or both, at the discretion of the Court.

The Constitution, Art. IY, sec. 83, gives Justices jurisdiction of criminal matters arising in their counties when the punishment cannot ex ceed a fine of fifty dollars, or imprisonment for one month. When the Legisfature removed this limitation, and left it discretionary with the Court to exceed that limit, it took away the jurisdiction of Justices of the Peace over the offence.

INDICTMENT for an affray, tried at Fall Term, 1873, of the Superior Court of Gbeene county, before Clarhe, J.

*497The parties had been tried for the same offense before a Justice of the Peace, and fined. To the indictment found in the Superior Court, they pleaded “ former conviction.” His Honor sustained the plea, and ga.ve judgment, dismissing the charge; from which judgment Solicitor Sherrard appealed.

Attorney General Hargrove, for the State.

Eo counsel in this Court for defendants.

RodMAN, J.

The defence of a former conviction cannot be sustained. The act of 1868-69, chap. 178, sub. chap. 4, by which Justices of the Peace were given jurisdiction finally to try certain petty assaults under certain circumstances was indirectly but effectually repealed by the act of 1870-71, chap. 43, sec. 2, which says, that in all eases of assault the punishment may be by fine, or imprisonment, or both, at the discretion of the Court.

The Constitution, Art. IY., sec. 33, gives Justices jurisdiction of criminal matters arising in their counties when the punishment ecmnot exceed a fine of fifty dollars, or imprisonment for one month. The moment, therefore, that the Legislature removed the limitation on the punishment prescribed by the act of 1868-69, and left it discretionary with the Court to exceed that limit, it took away the jurisdiction of Justices of the Peace over the offence.

Our opinion on this point makes it unnecessary to consider the other objections made to the former conviction before a Justice. They are, however, equally clear.

PER Cukiam. Judgment reversed and venire de novo..