Frantz v. Lenhart

The opinion of the court was delivered, November 22d 1867, by Thompson, J. Several defendants being sued or joined in an action for trespass and assault and battery upon the plaintiff, the judge charged that any of them might be held liable, although they did not put a finger on the plaintiff, provided, they aided, [367] encouraged or abetted the act. “ Nor is it required,” said he, “ in order to make themselves principals, that the persons actually-engaged in committing the injury should know that other persons were consenting or aiding and encouraging the act.” For so charging the defendants below except, and it forms the 1st assignment of error. It is difficult to comprehend how this should be considered an error in law. If men present at a quarrel, encourage a battery, by doing so they assume upon themselves the consequences of the acts done to the full extent, as much so as the party who does the beating. Often they are more culpable. It is not necessary that the encouragement should consist of appeals to the ruffian engaged in committing the battery, or that he should know what they are so doing. It is enough if they encourage and sanction what is being done, and manifest this by demonstrations, of resistance to any who might desire to interfere to prevent it; or by words, gestures or acts, indicating an approval of what is going on. It is contrary to law — contrary to duty — and the law will not weigh very nicely the acts of particular individuals, to ascertain whether what was said or done by them has enhanced the injury, more or less than the acts of others. All so engaged are answerable for all the injury, and had the judge charged the opposite of this, he would have committed a great error. Nor did he commit an error in his remarks on positive and negative testimony. It was proper in the philosophic aspect of the matter, and proper as an instruction in the case. A dozen of witnesses may testify truly that they did not hear or see any given transaction, and this might not be inconsistent with its existence, for their attention may have been diverted from it at the moment, or they may not have been within hearing or seeing distance ; but the witness who testifies positively to the existence of a given fact cannot be mistaken; his testimony must be true or absolutely false. It is reconcilable with those who testify negatively, and not necessarily antagonistic, for the reasons given. But the principle is so reasonable and well settled, that it would be a waste of time to enlarge upon it. The 3d and last assignment is general. It is “ that the charge as a whole was calculated to mislead the jury.” In what particular it was calculated to mislead is not specified or hinted at. Such assignments we cannot notice. If we did, we should be imitating the inapplicable argument on the questions of fact in the case presented. These were for the jury, and were, we think, referred to them with instructions free from error, so far as the bills of exception show. This being so, the judgment must be affirmed.