delivered the opinion of the court:

Moore sued McLemore in the circuit court of Carroll county, to recover damages for an assault and battery, and had verdict and judgment in his favor, from which defendant appealed in error.

There was some evidence tending to show that plaintiff below made the first assault with a walking-stick, and the court charged the jury: “If the plaintiff assaulted defendant with an ordinary walking-stick, and if defendant could, with reasonable safety to himself, have avoided the danger to himself by declining the assault, or by retreating, and did not do so, then if he struck the plaintiff, he could not avail himself of the doctrine of self-defense.”

If, in point of fact, the plaintiff had committed the first assault, the defendant might show, in justification, that what was done by him was in the necessary defense of his person. And he would not be bound to show that he could not have retreated or declined the conflict without danger to his person.

Although plaintiff may have struck the first blow, or attempted to strike, and was stricken in self-defense, the defendant might still be liable, if his battery of the plaintiff was excessive beyond what was apparently necessary for his self-defense. 2 Gr. Ev., sec. 95.

Eor the error indicated, we are constrained again to reverse the judgment in this ease.