Mcewen v. Springfield

• Decision Date: 30 September 1879
• Citation: 64 Ga. 160
• Parties: McEwen. v. Springfield et al.
• Court: Georgia Supreme Court

64 Ga. 160

McEwen. v. Springfield et al.

Supreme Court of the State of Georgia

(September Term, 1879.)

Witness. Evidence. Before Judge McCutchen. Whitfield Superior Court. April Term, 1879.

*To the report contained in the decision it is only necessary to add the following: The evidence for plaintiff tended to show the following facts: There was bad feeling between McEwen, the deceased, and the Springfields; the immediate quarrel arose in Springfield's grocery at night about buying some bitters; both of the Springfields advanced towards McEwen, and he went out of the door. Robert Springfield was held by a by-stander, the other defendants, except Horn, following McEwen; Horn came up with a knife, and told the by-stander to let Robert go, and when this was done, they too followed McEwen. In a few minutes he was killed, being both shot and cut with a knife. Horn was examined for the plaintiff by interrogatories; he stated that he heard the pistol shot and ran up to where the party was; that Hugh Springfield got up from a stooping position over the body and appeared to close a knife; that he heard them say that Bob Springfield had shot McEwen; that Hugh told Bob to go tohis house and get his horse and leave, as he had killed McEwen, and he himself went and closed up his grocery.

The evidence for the defendants was to the effect that McEwen had been drinking, and that all of them were seeking to to get him home and to prevent a difficulty, except Robert Springfield and Horn, the first of whom did the shooting and the latter the cutting.

WARNER, Chief Justice.

The plaintiff sued the defendants, Robert Springfield, Hugh Springfield, T. J. Smith, jr., Thomas S. Horn, and W. C. Quinn, to recover damages for the killing of her husband. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the plaintiff for $2,226.00 against Robert Springfield, and found in favor of the other defendants, except Horn, who had not been served. The plaintiff made a motion for a new trial on the following grounds:

*1. Because the verdict is contrary to law, contrary to the evidence, strongly and decidedly against the weight of the evidence, and against the principles of equity and justice.

2. Because the court erred in ruling, over plaintiff's objection, that the defendants, Hugh Springfield, T. J. Smith, jr., and W. C. Quinn, might testify as to all that Mrs. McEwen, the plaintiff, had testified about, and permitted them to testify fully as to their version of the homicide as set out in the brief of the evidence—plaintiff objecting to all of said testimony.

3. Because the court, after charging the jury as to the right of a widow to recover for the homicide of her husband, and instructing them as to the measure of damages—to which no objection is made—charged as follows, viz: "If either or any of the defendants unlawfully and feloniously slew the deceased, then any or such of them as did the act, or participated in it, would be liable in damages according to the measure I have given you. Such of them, if any, as neither did the act, nor participated in and promoted it, would not be liable. And again, if such killing occurred in pursuance of such conspiracy, then all, or any such as had joined in or become parties to that conspiracy, would be liable in damages, according to the measure I have given you; but such of the defendants as did not join or become parties to such conspiracy would not be liable for consequences of the same. Conspiracy here referred to need not be such as expressly contemplated a killing of the deceased. If there was a conspiracy, and the purpose of it any unlawful attack on the person of McEwen of any kind, even if only an assa ultand battery, and from that all the way up to murder, this would be sufficient. The principle is this: If two or more persons conspire together to do an unlawful act of violence on the body of another, and they embark in the execution of such purpose, the law would not protect each against the consequences of the other's not strictly observing the bar-gain; each must look out for that before joining with his fellow to break the law, and each becomes *responsible for the worst act done, and for the greatest damage caused by any of his fellows, if done in pursuance of the unlawful purpose. The doctrine of conspiracy, as before stated, would only apply to those who conspired, and if there was no conspiracy, then the principle would not apply at all."

This is the entire charge given in relation to the several defendants being responsible for the acts of any of the others. This charge, as a whole, plaintiff says was erroneous, and a new trial should for this error be granted.

4. Because the court failed to give in charge as the law applicable to the facts of this case though he was not specially requested so to do, either orally or in writing, but plaintiff's...