Britton v. Young
| Decision Date | 06 June 1905 |
| Docket Number | 5,321 |
| Citation | 74 N.E. 905,36 Ind.App. 622 |
| Parties | BRITTON v. YOUNG ET AL |
| Court | Indiana Appellate Court |
Rehearing denied December 5, 1905, Reported at: 36 Ind.App 622 at 626.
From Monroe Circuit Court; Joseph E. Henley, Special Judge.
Action by Joseph M. Britton against Jacob B. Young and others. From a judgment for defendants, plaintiff appeals.
Reversed.
East & East, for appellant.
Slinkard & Slinkard, for appellees.
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 Britton'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.
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...
To continue reading
Request your trial