
    Riddle v. The State.
    
      Indictment for Assault and Battery.
    
    1. Proof of venue. — Where the bill of exceptions, in a criminal case, purports to set out all the evidence, and does not show that the venue was proved, the judgment of conviction will be reversed.
    2. Admissibility of prisoner’s declarations, as part of res gestae. — In a case of assault and battery, a remark made by the defendant to the person assaulted, immediately after striking the blow, “ If I had known you were a one-legged man, I would not have struck you,” is competent evidence for the defendant as a part of the res gestee, and tending to mitigate the punishment.
    3. Assault and battery ; being struck first no defence. —-That the prosecutor struck the first blow is no defence to a prosecution for assault and battery.
    From the City Court of Eufaula.
    Tried before the Hon. E. M. Keils.
    
      S. B. Toney & S. H. Dent, for tbe prisoner.
    Ben. Gabdneb, Attorney General, for tbe State.
   B. F. SAFFOLD, J.

— 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.  