Britton v. Young , 36 Ind. App. 622 ( 1905 )

Roby, J.

Amended complaint in three paragraphs by appellant against appellees, fourteen in number. It is variously averred that the appellees assaulted, bruised and beat appellant in the presence of his family, in his house, in the night-time, with their fists, switches, clubs and sticks, to his damage. It is averred in the first paragraph that such assault and battery was committed in pursuance of a conspiracy between appellees to drive the appellant out of town, and to prevent him from continuing his business, the sale of drugs and groceries at retail, in Newark. The issue was made by a general denial. The venue of the cause was changed from Greene to Monroe county, where a trial was had by jury and a verdict returned for the appellees. The only error assigned is in overruling appellant’s motion for a new trial.

Evidence was introduced to the following effect: Appellant had lived in Newark two years before the alleged assault, and kept a retail drug store. The town had a population of nineteen families, the larger part of which are represented by appellees. On April 4, 1899, between 12 and 1 o’clock at night, appellant was taken from his house by a crowd of men, and seriously beaten with clubs, switches and picket slats. He and his family made a great deal of outcry. All of the appellees except four lived in the village, and within hearing of his cries. No one except the parties engaged in the beating came to the scene. None of the appellees or their families ever visited appellant after the beating. Prior thereto one appellee had said that Brit-ton’s drug store would be “in the middle kettle of hell;” that Britton would be whipped, and would have to leave town; three others said that he would be whipped and have to leave town. Lights were burning in two of the appellees’ houses a little before the whipping commenced. Appellees nearly all lived within a few hundred feet of appellant’s house. The beating lasted fifteen minutes. Wounds were cut in the appellant’s flesh from his shoulders to his knees, and the blood flowed from his body in perhaps a hundred places. Some of the participants held his wife and children while others beat him, demanding that he leave town, and not prosecute. There was much other evidence tending to show guilty knowledge of the contemplated outrage by a number of the appellees, and other circumstances tending to support the testimony, appellant and his family positively identifying the appellees as the persons committing the assault. The appellees denied making 'the statements above enumerated, testified that they were not present at the whipping, and were in that respect corroborated by members of their families. This statement of evidence is essential to a consideration of the questions presented on instructions.

1. In the third instruction given by the court to the jury at the request of the appellees it was stated that the gravamen of the first paragraph of complaint is a charge of conspiracy: “The first paragraph of complaint proceeds upon the theory that the defendants conspired and confederated together for the purpose of performing the unlawful acts and doing the things alleged therein, and the gravamen of the material part of that paragraph is-a charge of conspiracy.” This instruction was erroneous. Proof of the commission of the assault and battery averred entitled the appellant to recover. Severinghaus v. Beckman (1892), 9 Ind. App. 388; Mendenhall v. Stewart (1897), 18 Ind. App. 262; Anderson v. Oskamp (1894), 10 Ind. App. 166, 167.

2. The jury were further given, at the request of the appellees, the following instructions: “(10) In this case the fact, if it be a fact, that the defendants disliked the plaintiff and his family, and for that reason did not visit him after he was whipped, but remained away, can not be considered by you in this case, unless you find by a preponderance of the evidence that the defendants did the acts and things charged in the complaint, for the good reason that unless they did the unlawful acts charged, the motive which kept them away would not be unlawful, no matter how much they disliked the plaintiff and his family.” The appellant had a right to have all relevant evidence, including circumstantial, submitted to the jury and considered and weighed by it in connection with the issue as to the appellees’ participation in the assault and battery. By this instruction the consideration of a relevant circumstance was withdrawn from the jury, and they instructed to consider it only in event that the main fact was established by a preponderance of the evidence, thereby depriving appellant of the benefit of a pertinent fact. This instruction was emphasized by the ninth instruction given at appellees’ request.

A portion of the sixth instruction given at appellees’ request was as follows: “Each and every citizen has a right under our laws to the enjoyment of life and pursuit of happiness, and under these guarantees each citizen may choose his associates and those with whom he desires to visit, and this he may do with or without cause.” The same statement is in substance contained in the seventh and eighth instructions of the series, and appellees support them upon the theory that the court did not thereby tell the jury that the facts enumerated could not be considered by it, but only that in the absence of proof of the commission of the assault and battery charged such actions would be blameless. The import of the instructions, however, was to withdraw relevant facts from consideration, and they should not have been given. Whether an act of omission of the sort referred to was or was not blameless is not a question of law, but a question of fact to be determined by the jurors, and depending to some extent upon the dictates of humanity and grade of civilization existent.

3. ■The personal character and conduct of the appellant seems to have been distasteful to the majority of the members of the community where he lived. The assumption of power to regulate individual conduct through the medium of clubs, whips and picket slats is a very dangerous assumption. It might be difficult even in the town of Newark to stop at just the place to please all of the nineteen families, and he would be a very bold man who should venture to join the community, taking chances of popular disapproval, based upon facts beyond his control, and emphasized by penalties so arbitrary and severe. The law furnishes a standard of conduct and ample remedy for lawlessness. In its enforcement against all, in its observance by all, lies the safety and happiness of all.

Judgment reversed, cause remanded with instructions to sustain the motion for a new trial and for further consistent proceedings.