49 Ala. 389 | Ala. | 1873
— Tbe indictment was for assault and battery. It does not appear from tbe bill of exceptions, wbicb professes to set out all- of tbe evidence, that tbe offence was proved to have been committed in Barbour County. Section 4114 of tbe Revised Code enacts-“ It is- not necessary to allege where tbe offence was committed; but it must be proved on tbe trial to- have been committed within tbe jurisdiction of tbe county in wbicb tbe indictment is preferred.” We cannot * gainsay the recitals- of tbe bill of exceptions, and a conviction on testimony less than sufficient to make out the case against tbe accused is* necessarily erroneous. Brick. Dig. p. 514.
2. Tbe remark of tbe accused to tbe person beaten, “ If I bad known you were a> one-legged man, I would not have struck you,” made as 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 respecting 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 person to whom such language is- addressed cannot beat tbe other, it goes for nothing. Merely being struck first is not a justification, for then- we could' not have a case of affray. Generally, the facts- convey a correct impression to tbe jury of tbe degree of - blame to be attached to tbe offender.
Tbe judgment is reversed, and tbe cause remanded.
