delivered the opinion of the court.

In the construction- of the act of 1832, ch. 22, it has been held by this court, that in an indictment for an assault with intent to committ murder in the first degree, is included an indictment for an assault and battery; and if upon the trial the proof does not warrant a conviction for felony, the defendant may be found guilty of the[*53] misdemeanor. And in the latter case, if the prosecution were not commenced within twelve months “from the commission of the offence,” the defendant may avail himself of the limitation prescribed in the act of 1820, ch. 9, sec. 1, as a bar to the prosecution. But he can only do so, in a case like the present, by proof of the facts upon the trial; and not by plea, demurrer, or motion in arrest of judgment. 1 Meigs’ Dig. p. 370, and cases referred to. The judgment of the circuit court arresting judgment will therefore be reversed.