2. There was testimony that Cross;, the-person struck by the defendant, was sitting in am. alley near the shop of Ammons, where the defendant worked, and he appeared to Ammons to be drunk. To- keep the police from getting him Ammons asked5 him- to go into the shop, took him to the rear side door and. into a room where he kept carriages, etc., placed him on an old cushion, and then left the shop without telling the defendant about this, and defendant did not know that Ammons had placed him there. Defendant took hold of him, pulled him up and told him to go out. He walked off a few feet, turned aiid spoke insolently to defendant, who thereupon struck him with a piece of scantling.The court charged the jury, “that if Ammons placed Cross in the shop he had as much right to be thei’e as 'defendant, and that if the defendant put his hands on him to remove him forcibly and against his will, that would be assault and battery.” The court also charged that Cross had no right to remain in the shop longer than he properly deported himself, and that if he became boisterous or disorderly, the defendant, if left in charge of the shop by the proprietor, in the absence of the proprietor had the right to use such force as was necessary to eject Cross. The defendant contended that the portion of the charge quoted was error, because it was not warranted by the evidence, and because it directed the attention of the jury to the technical offence of placing hands upon Cross, the effect of which was to direct the jury to find that, however good might be the defence to the main rencounter and however successfully the State’s witness Fambro might have been impeached, the defendant, having admitted that he did place hands upon Cross, could still be found guilty technically of assault and battery; whereas the gravamen of the offence was the striking of Cross with a piece of timber, and to this the evidénee of the defendant was directed, no complaint being made of the placing of hands upon Cross.3. The only witness for the State who testified to having seen the assault and battery, was Preach Fambro, colored. The defendant introduced testimony to impeach, him, and in rebuttal the State,'for the purpose of supporting his credibility, was allowed to • prove by two witnesses, over defendant’s objection, that ten or fifteen minutes after the difficulty Fambro made to them a statement similar to that to which he testified. The ground of objection is not stated.
Preston, Giles & Polhill, for plaintiff in error.
"W. H. Felton, Jr., solicitor-general, contra.