¶1(dissenting). As stated in the dissent to the conclusions and judgment in State v. Maier, 13 N. J. 235 (1953), I hold the view that it was not the constitutional province of the Legislature to classify the perpetrator of an assault or an assault and battery as a disorderly person, subject to punishment as such, and for that reason I would affirm the judgment of conviction here.
¶2But, on the contrary hypothesis, were the accused now to be prosecuted for assault and battery under the Disorderly Persons Act, N. J. S. 2A :170-26, there would be an equal violation of the cherished principle of natural justice, embedded in the common law even before King John’s Magna Charta, that one may not be twice put in jeopardy for the same offense. Immunity from repeated jeopardy was one of the treasured basic liberties of the early common law secured against the encroachment of arbitrary power by c. 29 of the Great Charter. The constitutional and common law protection is not only against the peril of a second punishment, but also against a second prosecution for the same offense. State v. Lobato, 7 N. J. 137 (1951). The plea of autrefois acquit, says Chitty, proceeds from the principle that “no man shall be placed in peril of legal penalties more than once upon the same accusation”; and the plea of autrefois *54convict, that “no man shall he more than once in peril for the same offense.” 1 Ghitty Gr. L. 452, 455, 462.
¶3Certainly, assault and battery is not a divisible offense for the purpose of two separate and distinct prosecutions and separate and distinct punishments. If the accused here had been convicted of atrocious assault and battery, would he also be liable to prosecution for assault and battery under the Disorderly Persons Act and liable to punishment according to that essentially punitive regulation ? Save as otherwise provided, “a person adjudged a disorderly person shall be punished by imprisonment in the county workhouse, penitentiary or jail for not more than 1 year, or by a fine of not more than $1,000, or both”; and any person so adjudged who defaults in the payment of a fine laid against him is subject to commitment to one of the same penal institutions until the fine has been paid, at the rate of $3 for each day “he serves in such custody.” N. J. S. 2A :169-4-5. If the gravity of the offense is to be assessed by the permissible punishment, then it is hardly one of minor consequence, not to mention the moral and legal stigma of guilt.
¶4Assault and battery is not a divisible offense at common law, separable for the purposes of prosecution and punishment; and it is not, I suggest, within the constitutional power of the Legislature either to subject the offender to the given penal consequences under a different nomenclature designed to render inapplicable the constitutional guaranties of freedom from criminal prosecution unless on the indictment of a grand jury, and the right of trial by jury in criminal cases, or to deny immunity from double jeopardy, limitations upon absolute power confirmed by Magna Charta in the year 1215. That such was in the main the purpose of the new classification is not denied; indeed, it is offered as justification for the so-called downgrading” of the common-law crime of assault and battery.
¶5As said by way of dissent in the Mcáer case, 'the common law does not classify assaults as to the degree of the offense, all assaults being misdemeanors; yet some assaults are deemed more grievous than common assaults in that, apart from the general intent to commit an assault, there was a *55specific intent to do another act also criminal, as an assault with intent to murder, to rob, or to perpetrate a felony, referred to as “aggravated assaults” and punished more severely than simple assaults. But there are “no legal or technical differences, at common law, between assaults which are slight and assaults that are aggravated,” and they “were not recognized as distinct and separate crimes, but assaults more or less aggravated according to the facts of each case were in judicial discretion subjected to heavier penalties.” Burdich’s Law of Crimes, section 345.
¶6A battery, or, as it is usually called, an “assault and battery,” is a consummated or completed assault. They are two separate and distinct offenses, an assault being an unsuccessful attempt to commit a battery, and a battery being the “accomplished act,” and so every battery includes an assault; and where the evidence 'does not show a battery, there may be a conviction for assault, and it follows that, if there be an acquittal, then the plea of autrefois acquit is a complete bar to a later prosecution for the assault alone. The bodily harm constituting a battery may be slight or it may be great. Burdick’s Law of Crimes, sections 350, 351.
¶7By statute, aggravated assaults have been made felonies, in this State high misdemeanors, and the specific intent required by the statute is of course an essential ingredient of the offense. But in a battery, a general criminal intent suffices at common law. Burdick’s Law of Crimes, section 352. Here, also, it is settled doctrine, and such has been the rule in New Jersey heretofore, that there may be a conviction of assault or assault and battery on the trial of an indictment charging the offense of the higher grade, and an acquittal bars prosecution for the offense of the lower grade.
¶8It is the general rule that whether a person accused of a minor offense be acquitted or convicted, he cannot be charged again on the same facts in a more aggravated form. This is the rule at common law. The authorities are to be found in the Lobato case. And it is immaterial whether the first acquittal or conviction were in a summary proceeding or on indictment. Wemyss v. Hopkins, L. R. 10 Q. B. 378, 44 L. J. M. C. 101.
¶9*56Where “the fact prosecuted” is the same in both prosecutions, though the offenses differ “in color and degree,” there is prior jeopardy; a prosecution “for any part of a single crime bars any further prosecution based on the whole or a part of that crime.” State v. Labato, supra. The principle was long since settled in State v. Cooper, 13 N. J. L. 361 (Sup. Ct. 1833), and reiterated in State v. Rosa, 72 N. J. L. 462 (E. & A. 1905), and State v. Mowser, 92 N. J. L. 474 (E. & A. 1919). “The same act may not be twice punished by the same sovereignty, merely because it violates two laws.” Copperthwaite v. United States, 37 F. 2d 846(C. C. A. 6 1930). The question, said Justice Drake in State v. Cooper, supra, is whether “the offenses charged are essentially severable and hence distinct, and one is not included in the other.” Here, we have but one act and one intent; the assault and battery cognizable under the terms of the Disorderly Persons Act was of necessity an integral part of the offense charged in the indictment. The principle is elucidated in 15 Am. Jur. 56, 58, and the cases cited in the footnotes, including our own case of State v. Mowser, supra: “Same offense” means not only the same offense “as an entity,” but also any integral part of such offense which may subject the offender to punishment. The basic doctrine is exemplified in Re Nielsen, 131 U. S. 176, 9 S. Ct. 672, 33 L. Ed. 118 (1888); People v. Stephens, 79 Cal. 428, 21 P. 856, 4 L. R. A. 845 (Sup. Ct. 1889).
¶10There is no occasion now to advert to the jurisdictional difficulties in relation to the administration of criminal justice in the particular field … of determining at the outset in a given case which statute applies and the jurisdiction to be invoked.