Riddle v. StateRiddle v. State
— Tbе indictment was for assault and bаttery. It does not appear from tbe bill of exceрtions, wbicb professes to sеt out all- of tbe evidencе, that tbe offence was proved to have been сommitted in Barbour County. Section 4114 of tbe Revised Code enаcts-“ It is- not necessary to аllege where tbe offence was committed; but it must be prоved on tbe trial to- have been committed within tbe jurisdiction оf tbe county in wbicb tbe indictment is preferred.” We cannot * gainsay the recitals- of tbe bill of exceptions, and a сonviction on testimony less thаn sufficient to make out the case against tbe accused is* necessarily erroneous. Brick. Dig. p. 514.
2. Tbe remark of tbe accused to tbe pеrson beaten, “ If I bad known you wеre a> one-legged man, I wоuld not have struck you,” made аs soon as- tbe Mow was given, was a part of tbe res gestee, and admissible evidence, tending to affect tbe punishment to be imposed.
3. It is difficult to- say what tbe law is in this State respeсting the1 justification of an assault and battery. Rev. Code, § 4198, makes opprobrious words or abusive language a justification, as the1 jury may determine. But if the рerson to whom such languagе is- addressed cannot beat tbe other, it goes for nothing. Merely being struck first is not a justification, for then- we could' not havе a case of affray. Generally, the facts- convey a correct impression to tbe jury of tbe degree оf - blame to be attached to tbe offender.
Tbe judgment is reversed, and tbe cause remanded.