Lamar, J.
(After stating the foregoing facts.) 1. The conversation immediately succeeding the battery illustrated the question of motivé, and was a part of the res gestee, and thereforé admissible.
2 — 6. There was undoubted evidence of resistance on the part of Davis to the arrest by Moody. But if there was any testimony to warrant a charge on the subject of self-defense, it was included in the very proper instruction given to the jury, and of which complaint is made in the motion for a new trial. The rights and duty of the officer were there correctly stated. The [870] greater includes the less. , If he has the right to overcome resistance in order to make the arrest, he necessarily would have the right to exercise the smaller degree of .force..which was required only to defend himself. - There was little conflict in the evidence. The battery was admitted. The question involved was whether the officer only 'used such force as -wap necessary, to make the arrest effectual, or whether .hp was guilty of an assault greater than was necessary to be used in making the arrest and holding the prisoner. The evidence being sufficient to sustain the verdict, the judgment refusing a new trial is
Affirmed.
All the Justices concur.
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