I.
The indictment is framed under section 6, page 491,1 Wagner’s Statutes, and states all that is necessary under that section to constitute an affray, and is, consequently, sufficient; and that offense was indictable when the indictment w-as found — and the circuit court had jurisdiction.
II.
The instructions given in behalf of the State .would seem to have presented the law with unexceptionable fairness to the jury, and as the evidence has not been preserved, it will be presumed that the evidence adduced at the trial warranted their giving. But those instructions are not the subject for appropriate discussion here, for a reason we will now state: The same rule is applicable in criminal as in civil cases, as to the necessity of the incorporation of the motion for a new trial in the bill of exceptions. As the motion mentioned has not been thus incorporated, we cannot notice any of the alleged errors occurring during the trial, that is to say errors which only constitute matter of exception, and not ai’ising on the face | of the record proper.
III.
But could we ignore that rule, it would not help the defendant. His evidence, so far as preserved, was offered on the single point, i. e., to show that he had been tried