We have found some cases to the contrary. See State v. Sampson, 157 Ia. 257, 138 N.W. 473, 42 L.R.A. (N.S.) 967; State v. Smith, 217 Ia. 825, 253 N.W. 130; State v. Purdin, 206 Ia. 1058, 221 N.W. 562 (expressly disapproving prior cases of State v. Dickson, 200 Ia. 17, 202 N.W. 225, State v. Garcia, 198 Ia. 744, 200 N.W. 201); People ex rel. Kwiatkowski v. Trenkle, 169 Misc. 687, 9 N.Y.S.2d 661. See also Moore v. State, 71 Ala. 307.
Although in line with the minority, it is the rule in this state that a conviction or acquittal of a charge of assault and battery does not bar a subsequent prosecution for assault with intent to do great bodily injury. This was first held in this state in State v. Foster, 33 Iowa 525. The holding in that case is based in part upon section 4720 of the Revision, now section 13808 of the Code. This precise question has not been made the basis of the court's decision in any subsequent case, but the rule has, by repeated restatement and recognition, become the settled law of this state. State v. Gleason, 56 Iowa 203, 9 N.W. 126; State v. Blodgett, 143 Iowa 578, 121 N.W. 685, 21 Ann. Cas. 231; State v. Broderick, 191 Iowa 717, 183 N.W. 310; State v. Garcia, 198 Iowa 744, 200 N.W. 201; State v. Dickson, 200 Iowa 17, 202 N.W. 225; State v. Purdin, 206 Iowa 1058, 221 N.W. 562; State v. Jacobson, 197 Iowa 547, 197 N.W. 638; State v. Wheelock, 216 Iowa 1428, 250 N.W. 617. The same rule has had recognition in a few other jurisdictions. State v. Hattabough, 66 Ind. 223; May v. State, 110 Ark. 432, 162 S.W. 43; Caudle v. State, 57 Tex.Crim. R., 123 S.W. 413.
On the question of the identity of the offenses as the "same offense" the definition contended for by the state is negatived also in the following cases: State v. Blackledge, 216 Iowa 199, 243 N.W. 534; State v. Folger, 204 Iowa 1296, 210 N.W. 580; State v. Purdin, 206 Iowa 1058, 221 N.W. 562. On this same subject we quote from Bishop's Criminal Law, vol. 1, (9th Ed.) section 1060, page 785, the following:
We hold that the appellant is in error in contending that the facts in the case at bar place it under the provisions of Section 1936, supra, which purports to regulate legal transportation by requiring the observance of certain details of method to prevent the abuse of lawful transportation. See State v. Purdin, 206 Iowa 1058. 4. The last contention of the appellant finds no basis for support. A jury question was presented under a direct conflict of the evidence heretofore set out.
"Any person, firm, or corporation, and any agent or employee thereof, who engages in the transportation of intoxicating liquors shall for each act of transportation be fined in a sum not exceeding one thousand dollars or be imprisoned in the county jail not exceeding one year or be punished by both such fine and imprisonment and pay the costs of prosecution, including a reasonable attorney fee * * *" The foregoing statutes are discussed in State v. Wyatt, 207 Iowa 322, and State v. Purdin, 206 Iowa 1058. We need not repeat what is there said.
" ( Commonwealth v. Jones, 288 Mass. 150, 152.) Representative of the minority view to the contrary are State v. Blevins, 134 Ala. 213, and State v. Purdin, 206 Iowa 1058, quoted in State v. Smith, 217 Iowa 825, and People v. McDaniels, 137 Cal. 192. In some instances the policy of the State is expressed by statute ( Richardson v. State, 109 Tex.Crim.