By the Court.
McDonald J.
delivering the opinion.
There is a class of minor criminal offences which may be settled by the offender with the prosecutor, with the consent of the injured party, at any time before verdict. They are such offences as are not punishable by fine and imprisonment or a more severe penalty. The settlement may be made independent of the Court, and without its consent. Offences of higher grade than these above mentioned, cannot be settled without the consent of the prosecutor shown to the Court, nor without the consent of the Court by order entered on the minutes. Cobb’s Dig. 864. The plaintiff in error is indicted for assault and battery, and on conviction, he may be punished by fine and imprisonment in the common jail, and his offence, therefore, does not fall within the class which may be settled by him without the consent of the Court. It was within the discretion of the Court below to allow it to be settled or not, and there can be no legal error in the exercise of that discretion, and we, therefore, affirm the judgment.
My brethren, are of opinion, that the parties ought to have been allowed to settle, upon the appeal which was made to the Court, as the indictment grew out of a family affair. I can express no such opinion. The application to the Courty as shown to us in this record, is not sustained by evidence. I think on such applications the Court ought to be satisfied that the interests of the community, and of the injured party, will suffer no detriment by allowing the settlement.
3 udgment affirmed.