¶1This case must be reversed, for the reason that the. venue of the offense was not proven on the trial. There was error in the court in refusing to give the charge asked by the defendant, that the jury might, if the evidence would warrant such a verdict, acquit the defendant of an aggravated assault, and find him guilty of an assault and battery, of a simple assault.
¶2When a gun or pistol is used simply as an instrument to strike with, it is not necessarily a deadly weapon, but would be such or *573not according to its size and the manner of using it; and these facts should be determined by a jury. ,
¶3'.The judgment is reversed and the case is remanded.
¶4Eeversed and remanded.