Strout v. Packard

Decision Date15 May 1884
Citation76 Me. 148
PartiesCHARLES A. STROUT, by S. C. STROUT, guardian and next friend, v. SAMUEL E. PACKARD and others.
CourtMaine Supreme Court

ON EXCEPTIONS and motion to set aside the verdict.

(Declaration.)

" In a plea of trespass, for that said defendants, at Brunswick, in said county of Cumberland, on the twenty-fifth day of October, A. D. eighteen hundred and eighty-one, with force and arms, assaulted the said Charles A. Strout, and then and there, beat, bruised, wounded and ill-treated him and then and there struck him, said Charles, a violent and dangerous blow, upon the left eye, with a dangerous weapon, to wit, a piece of coal of the weight of, to wit, one pound, thereby inflicting serious bruises and contusions of the head and face, and a dangerous and painful injury to the left eye of said Charles wholly destroying the sight of the same for a long time, to wit, two weeks, and endangering the sight therefrom, permanently, from which injury he has suffered, and is still suffering, and will continue to suffer great pain, and has been put, and will continue to be put, to great expense for medical attendance and nursing; and other enormity to the said Charles, the defendants then and there did, against our peace; also for the said defendants, at Brunswick, in said county of Cumberland, on the twenty-fifth day of October, last past, wantonly, wickedly and unlawfully conspired, confederated and agreed together, to attack, assault, insult and otherwise injure in their person, and deprive of their property, certain members of the Freshman class of Bowdoin college, in said Brunswick, one of said members being the said Charles A. Strout, who was then and there in the lawful and peaceable occupation of his own room, in Appleton Hall, so called, belonging to said college, and being so confederated together, said defendants, in the execution of their said purpose and agreement, then and there with force and arms, unlawfully made an assault, upon said Charles A. Strout, then and there being in his room as aforesaid; and him the said Charles did beat, bruise and grievously wound, and throw dangerous missiles through the windows of the room of said Charles, and at his head, one of them, to wit, a large piece of hard coal, of the weight of, to wit, one pound, so thrown by defendants at said Charles, and through his said window, struck said Charles on and over the left eye of said Charles, inflicting a dangerous wound and blinding the sight of the left eye of said Charles for a long time, to wit, two weeks, from which injury the said Charles was and is in great danger of losing the sight of said eye, and has ever since suffered great pain and prostration, and will continue to suffer great pain, and mental distress, and has been and will be put, to great expense of medical attendance, medicines and nursing To the damage," & c.

Writ is dated November 15, 1881. The plea was the general issue. The verdict was against all the defendants in the sum of twenty-five hundred dollars.

The facts are sufficiently stated in the opinion.

A. A. Strout, N. and H. B. Cleaves, and Strout, Gage and Strout, for the plaintiff, upon the question discussed in the opinion, contended that it is not necessary that the judge should use the language of the request; he may use his own language and embody several requests in one instruction. State v. Reed, 62 Me. 129.

It is sufficient if the substance of the requested instruction is given. Foye v. Southard, 64 Me. 389; State v. Watson, 63 Me. 128; Roberts v. Plaisted, 63 Me. 335.

The instructions were not limited to the mere fact that the evidence could not be used to show the assault or a motive for it; but the jury were told that it was not admitted, and was not to be used to " prejudice the defendants by showing that they had been engaged in other wrongful proceedings," nor to prove the likelihood they would do such an act, nor to raise a probability against the defendants, but that it was admitted simply to establish, so far as it might in their minds tend to establish, what the common design of the defendants was upon that night, and only so far as it tended, in their judgment, to develop the nature of the common object, in pursuance of which the defendants were out upon this occasion; but, " that in determining whether any one of the defendants threw the coal, they will lay out of the case any evidence with regard to their conduct on previous or subsequent occasions, and that it is not to be considered by the jury, unless they first find that one of the defendants threw the coal which injured the plaintiff, and then only as bearing upon the question whether the other defendants were aiders or abettors in that act." The latter being in the exact language of a request of defendants, and all being much more favorable to defendants, and so not subject to exceptions. Staples v. Wellington, 58 Me. 453; Gardner v. Gooch, 48 Me. 487; Merrill v. Merrill, 67 Me. 70.

The defendants were assembled together on the night of plaintiff's injury from some motive and with some object, and for what was certainly a proper subject of inquiry by the jury, and any evidence legally tending to show it was proper for their consideration. It is well settled that evidence may be received of facts which happened before or after the principal transaction when the knowledge or intent is a material fact. 1 Greenl. Evidence, § 53.

A similar rule has been applied in cases of fraudulent transfer of property, when evidence of other fraudulent conveyance made about the same time was received. Stockwell v. Silloway, 113 Mass. 384; Warren v. Williams, 52 Me. 346; Howe v. Reed, 12 Me. 515.

So in cases of false pretences, evidence of similar false pretences made to others about the same time is received. McKenney v. Dingley, 4 Me. 172; Hawes v. Dingley, 17 Me. 341.

So upon indictment for larceny, evidence that respondent, after the larceny, was in possession of other bills, though not identified, was admitted. Commonwealth v. Montgomery, 11 Met. 535.

So in an action for money claimed to have been appropriated by defendant, evidence was admitted that while in employ of plaintiffs he was the owner of property far exceeding his salary and receipts. Railroad v. Dana, 1 Gray 101.

So in an action against a railroad company to recover for the destruction of buildings by fire, claimed to have been communicated by defendant's locomotives, evidence was admitted that during the same summer, some of defendant's locomotives scattered fire, and without showing that the one which plaintiffs claimed communicated the fire was among the number, or that they were similar in make, state of repair or management. G. T. R. Co. v. Richardson, 1 Otto 470.

So in indictment against one for procuring a miscarriage, after proof of a common illegal purpose between defendant and other parties, their acts and declarations in his absence, in pursuance of the common purpose, are admissible against him. Commonwealth v. Brown, 14 Gray 419.

To prove a conspiracy to commit a particular fraud, a like fraud committed by the alleged conspirators about the same time on a third party, is held admissible in evidence. Hilliard on Torts, Vol. 2, page 309.

And it is not necessary that the conspiracy should first be established, the order of time as to the admission of evidence resting wholly with the judge. If the jury, from the legal evidence, are satisfied that this was a conspiracy, or common illegal purpose, then such evidence as just mentioned is competent. Place v. Minster, 65 N.Y. 89. As to the admission and use of testimony of this character, see also, Butler v. Watkins, 13 Wall. 464; Commonwealth v. McCarthy, 119 Mass. 354; Commonwealth v. Merriam, 14 Pick. 519; Commonwealth v. Tuckerman, 10 Gray 197; Commonwealth v. Choate, 105 Mass. 451; Commonwealth v. Bradford, 126 Mass. 42.

Evidence of these acts was not admissible generally, but for a particular purpose; and the court, in their instruction properly limited the effect of the evidence to the purpose for which it was competent. All these authorities show that the instruction as to the use of this testimony was sound law, and much more favorable to the defendants than they had the right to have it.

Charles F. Libby, for the defendants, cited: Parker v. Huntington, 2 Gray 127; Randall v. Hazelton, 12 Allen 414; Miller v. Shaw, 4 Allen 501; Jordan v. Osgood, 109 Mass. 457; Com. v. Jackson, 132 Mass. 16; Vosburgh v. Moak, 1 Cush. 453.

SYMONDS J.

This was an action against seven defendants, charging them with a joint assault upon the plaintiff, and claiming to recover damages therefor. The act of assault was the throwing of a piece of coal, which struck the plaintiff over the eye and injured him seriously. It was, of course, the act of one person. To show a concert of action on the part of the defendants, such as to affect them with a joint liability for this act of one, evidence was received of the misconduct of some of the defendants at other times, which the plaintiff claimed tended to prove a general design on their part, as upper classmen in Bowdoin college, to harass the members of the Freshman class, of whom the plaintiff was one.

The court said to the jury: " Evidence was offered, which you will remember, as to the acts of some of these defendants in other cases, at other times. It is necessary that you should understand precisely what that evidence was offered for, and what use you can properly make of it. It was offered and...

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