Hilmes v. Stroebel

• Decision Date: 11 December 1883
• Citation: 17 N.W. 539,59 Wis. 74
• Parties: HILMES v. STROEBEL AND OTHERS.
• Court: Wisconsin Supreme Court

59 Wis. 74

17 N.W. 539

HILMES

v.STROEBEL AND OTHERS.

Supreme Court of Wisconsin.

Filed December 11, 1883.

Appeal from circuit court, Washington county.

Frisby & Weil, for appellant, Christoph Hilmes.

O'Meara & Miller, for respondents, John Stroebel and others.

COLE, C. J.

The counsel on both sides agree as to the correctness of the proposition that all concerned in an assault and battery are principals, and that one who incites another to commit such an offense is guilty and may be prosecuted as principal, although he did not otherwise participate in the wrongful act. In Brown v. Perkins, 1 Allen, 89-98, BIGELOW, C. J., states the rule upon this subject as follows: “Any person who is present at the commission of a trespass, encouraging or inciting the same by words, gestures, looks, or signs, or who in any way or by any means countenances or approves the same, is in law deemed to be an aider and abettor, and liable as principal; and proof that a person is present at the commission of a trespass, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same.” 3 Greenl. Ev. § 41; Whart. Crim. Law, § 616; Sikes v. Johnson, 16 Mass. 389;Frantz v. Lenhart, 56 Pa. St. 365. But, as the learned judge in Brown v. Perkins remarks, it is to be borne in mind that mere presence at the commission of a trespass or wrongful act does not render a person liable as a participator therein. If he is only a spectator, innocent of any unlawful attempt, and does no act to countenance or approve those who are actors, he is not to be held liable on the ground that he happened to be a looker-on and did not use active endeavors to prevent the commission of the unlawful acts. State v. Maloy, 44 Iowa, 104;State v. Jones, 83 N. C. 605;Lamb v. People, 96 Ill. 43. But any encouragement or aid given the principal actor, any concert of action in the execution of the unlawful design, will amount to a guilty participation in the trespass.

Now, is there any evidence in this case from which a jury would be justified in finding that the defendants Gruber, Herman and Holsit, encouraged or incited Stroebel to commit the assault and battery upon the plaintiff? We think there is. After Stroebel first struck the plaintiff at Boden's, the defendants were heard by Glautz talking about the plaintiff not far from his...