Owens v. Derby ( 1839 )

Smith, Justice,

delivered the opinion of the Court:

The only question presented in this case is the refusal of the Circuit Court to instruct the jury to find a verdict as in case of a nonsuit, as to both of the defendants, who are charged as joint trespassers in assaulting and beating Derby, who was plaintiff in the Circuit Court, and as to each separately, on a motion in behalf of each. From the evidence in the bill of exceptions, we think the motion was properly overruled. Whether the second assault by Owens was a continuance of the affray by Stevens, and the whole so closely connected as to constitute but one joint action of the parties, in the scenes of violence disclosed by the evidence, was properly left to the jury. They were the judges of the facts disclosed by the testimony, and unless the acts of violence perpetrated by both on the person of Derby were wholly disconnected, and clearly so, it was manifestly more discreet to leave the jury to decide on the nature of the affray, and what participation the parties had in it, and whether they were jointly acting. By the verdict, the jury have found that they were joint trespassers, and we see no sufficient ground for disturbing the verdict and judgment.

The Circuit Court should doubtless have instructed the jury, (if the application had been made,) that they must be satisfied that the trespass was a joint one ; and explained what in contemplation of law would render it so, otherwise they were bound to render a verdict in favor of the plaintiff; and if they considered the evidence established separate trespasses, then they might render a verdict against one and acquit the other. The counsel for the defendants clearly mistook the course which should have been pursued in the instructions asked.

Judgment affirmed.