¶1delivered the opinion of the Court.
¶2Charles McNulty, plaintiff in error, upon his plea of guilty to a warrant issued by a justice of the peace of Shelby county, January 15, 1903, charging him with assault and battery'upon one Cottrell Childress upon a previous day of that month, was fined $50, and committed to the workhouse. Childress died about 30 days thereafter from the injuries sustained from the assault and battery committed upon him, and the plaintiff in error was indicted for his murder in the criminal court of Shelby county, and upon trial was found guilty of voluntary manslaughter, and his punishment fixed at two years in the State penitentiary.
¶3After the State had closed its case, and the plaintiff in error had been examined as a witness in his own behalf¿ his counsel tendered to the court a plea -stating the proceedings before the justice of the peace, find relying upon them, and the judgment there given against the plaintiff in error, as a former conviction, in bar of the indictment under' which he was then being tried, without any affidavit explaining why it was not tendered at the proper time. The trial judge refused to allow the plea to be filed, and directed the trial to proceed upon the plea of not guilty. This action is now assigned as error.
¶4There was no error in the refusal of the trial judge to allow the plea tendered to be filed. It should have been tendered, along with the plea of not *485guilty, before the trial was begun; and not having been tendered until the State had closed the evidence in its behalf, and the plaintiff in error was introducing, his, and the delay not being satisfactorily explained, it was within the discretion of the court to refuse permission for it to be then filed. But the action of the trial judge was correct upon the merits. The plea did not set forth a meritorious and valid defense to the indictment. The facts stated in it did not show that the plaintiff in error had once been in jeopardy for the offense for which he was then being tried — the murder of Cottrell Childress. The proceeding had against him was for a misdemeanor. —assault and battery.
¶5The indictment in this case is for a felony — murder committed upon Cottrell Childress — a greater offense, containing other and materially different elements from the former one, and requiring different proof to convict, and which had not been committed and was not in existence when the'' first trial was had, Childress being then, alive. The íavo offenses are entirely distinct, and the identity necessary to sustain a plea of the former con-Auction is Avholly wanting. '
¶6It is well-settled law that a conviction of a misdemeanor included in a felony is no bar to a prosecution for the felony, and certainly this rule must prevail when the felony is not consummated until after the conviction of the misdemeanor, as was the murder in this case by the death of the assaulted party after the judgment before the justice of the peace. Mikels v. State, 3 Heisk., 321; Clark’s Crim. Prac., pp. 402, 403. It is, hoAvever, insisted by counsel for plaintiff in error *486that this rule has been abrogated in this State by statute; and chapter 27, p. 31, of the acts of 1870-71 (Shannon’s Code, sec. 7180), is relied upon to sustain this contention. It is as follows: “In all' criminal cases in which a defendant shall have been brought before a justice of the peace under the provisions of the small offense law, and shall have submitted and been fined in manner and form as provided by law, and shall thereafter be indicted or presented for the same identical offense as a felony, said defendant may plead said former conviction as a bar to any conviction of a misdemeanor under said indictment or presentment for felony, provided the jury shall find the plea of the former conviction valid under the present laws of this State.”
¶7This statute will not bear the construction insisted upon, but it is plainly to the contrary. It is unmistakably provided that a conviction under the small offense law for a misdemeanor included in a felony may be pleaded in bar of another conviction of the same misdemeanor under an indictment against the defendant for the felony involved, and upon which he is being tried for such felony. It does not provide that a conviction for the misdemeanor shall be a bar to a prosecution for the greater offense, the felony, and was never intended to have that effect. It will not be presumed that the general assembly intended to provide such a convenient mode for felons to escape their merited punishment.
¶8The failure to file a plea at the proper time being unexplained, and no merits being shown, the assignment of the error is overruled, and the judgment affirmed.