To ail indictment for an assault and battery tbe defendant plead “ not guilty,” and requested tlie court to charge the jury that as the State did not show, or offer to show, that the offence was committed within two years before the prosecution was instituted, they must return a verdict of not guilty. The court refused so to charge, and held “ that if: the defendant relied upon the statute of limitations, he must show it or give the State notice of it.” This was error.
The general issue “ not guilty ” made it incumbent upon the State to prove every thing necessary to establish the guilt of the defendant.
We believe a practice has grown up, under which the State does not usually, in the trial of misdemeanors, prove, in the first instance, venue, time, &c., unless some-point be-made thereon by the defendant, but this practice is permitted merely for convenience and the dispatch of business, and ought never to prejudice a defendant who, as in this case, relies upon such defences.
The court might have permitted the prosecution to recall a witness and prove time, place, &e., when the defendant asked for instructions to the jury, but instead of so doing a ruling was made to the prejudice of the defendant,- for which there must be a venire de novo.
Pek Cueiam. Yen ire de novo.