Shepherd. v. Petitioner

• Decision Date: 28 January 1867
• Court: West Virginia Supreme Court
• Parties: Henry Shepherd et al. v. Abraham R, McQuilkin.

2 W.Va. 90

Henry Shepherd et al.

v.Abraham R, McQuilkin.

Supreme Court of Appeals of West Virginia.

January Term, 1867.

1. If a party be present at the time goods are taken, participating, aiding and

assisting in the taking, or countenancing and encouraging those who took them, or taking and receiving the goods, he is liable in an action of trespass for the value of all the goods then taken.

2. The jury may allow interest on the sum found by the verdict, and fix the

period at which it shall commence; therefore, it is not error for a circuit court to instruct the jury that the defendant is liable, if at all, for the value of the property taken, with interest on that value from the time it was taken.

3. It must be presumed that the court below acted correctly in refusing in-

structions to the jury, unless it appear by facts or testimony incorporated in the bill of exceptions, that the instructions were relevent or irrelevent to the cause.

This was an action of trespass instituted in the circuit court of Berkeley county, for breaking into the store of the Plaintiff, Abraham R. McQuillan, in Berkeley county, and seizing, taking and carrying away, and disposing of and converting to their own use, certain goods and chattels of the plaintiff, by the defendants Henry Shepherd, sen'r, John Shepherd, James A. Osborne and James W. Glenn. At the April Term 1866, the defendants appeared and pleaded not guilty, and a jury wras sworn to try the issue. The jury returned a verdict of guilty against all the defendants except Glenn, and assessed the plaintiff's damages against the defendants Henry Shepherd, John Shepherd, and Jaynes A Osborne, at 500 dollars, with interest thereon from the 10th of September, 1861, upon which judgment was rendered.

On the trial the plaintiff moved the court to instruct the jury, after he had offered evidence tending to prove that on the 10th day of September, 1861, the property in the plaintiff's declaration, or some part thereot, was taken by Colonel Ashby's regiment of rebel cavalry; that defendants Henry Shepherd and John Shepherd were not in the military service of the rebel authorities, but were private citizens residing in the neighborhood; were present at the time and place when and where said goods were taken, and that defendant Henry Shepherd, received from his son Abraham Shepherd, who was a soldier engaged in taking the plaintiff's goods, an umbrella, and several other small articles which he put in his pocket, knowing the umbrella to be a part of the goods then and there taken from the plaintiff; that the defendant John Shepherd took or received from the soldiers one or more straw hats, which he took away with him, knowing them to have been taken from the plaintiff; and therefore, the plaintiff requested the court to charge the jury, that if the jury found from the evidence that the trespasses in the declaration charged were committed at a single time and place; that the defendants, or any of them, participated therein, or aided, assisted, countenanced or encouraged such raking; or at the time and place of said taking, took or received and appropriated any part thereof, knowing the same to have been then and there taken from the plaintiff against his will; the defendants so participating, aiding, assisting, countenancing, encouraging, taking, receiving, &c, were liable to the plaintiff for the value of all the plaintiff's goods so then and there taken, with interest thereon from that date. The court gave the foregoing instructions as asked for, and the defendants excepted.

The defendant Henry Shepherd, moved the court to instruct the jury: "That the plaintiff having introduced evidence tending to prove that the seizure and carrying away of the plaintiff's goods complained of in his declaration was done by a body of rebel cavalry, acting under the orders of Colonel Ashby, and that the defendant Henry Shepherd, a private citizen residing in the neighborhood, but no wise connected with the same, was at the village of Hardscrabbh', the scene of the trespass, a portion of the time, during which time the said trespass wras being committed, and that he by his presence and acts, had countenanced and encouraged said trespass the court instructs the jury, that if from the evidence before them, they believe that the defendant Henry Shepherd, was ignorant of all design or purpose upon the part of the rebel forces to seize and carry away the property of the plaintiff when they passed his house, that he left his home for the scene of the trespass, with no design or purpose of aiding, assisting or encouraging them in the said act of trespass, but for the purpose of relieving two Union citizens, residents thereof, whose arrest he regarded as probable under the circumstances; that whilst at the scene of trespass he did nothing by word or deed to aid, assist or encourage the siezure of the plaintiff's property, or to benefit himself by its seizure, then the said Henry Shepherd, although present during a portion of the time whilst the property of the plaintiff was being seized and carried away, is not, in law, guilty of any participation in the said trespass, and they should find a verdict for the defendant, Henry Shepherd." The court refused to give the instruction as asked for by defendant, Henry Shepherd, but gave it with this addition, "unless for other reasons, and upon the principles enunciated in other instructions given in this cause, they find him liable." To the opinion of the court refusing the instruction asked for, and granting the instruction as given, the defendant Henry Shepherd excepted.

The defendant Henry Shepherd, also moved the court to instruct the jury, "that upon the trial of the cause, the plaintiff having introduced evidence to prove that the seizure and carrying away of the plaintiff's property, complained of in his declaration, was done by a body of rebel cavalry, acting under the orders of Colonel Ashby, and that the defendant Henry Shepherd, a private citizen residing in that neighborhood, but no-wise connected with the army, was at the village of Hardserabble, the scene of the trespass a portion of the time, during which time the said trespass was being committed, and that he, by his presence and acts, had countenanced and encouraged said trespass, and that if from the evidence before them, they believe, that the defendant Henry Shepherd was ignorant of all design or purpose upon the part of the rebel forces to seize and carry away the property of the plaintiff, when they passed his house, that he left his home for the scene of the trespas with no design or purpose of aiding, assisting or encouraging them in the said act of trespass, but for the purpose of relieving two union citizens resident there, whose arrest he regarded as probable under the circumstances, that whilst at the scene of the trespass he did nothing by word or deed to aid, assist or encourage the seizure of the plaintiff's property, or benefit himself by its seizure, then, the said Henry Shepherd, although present during a portion of the time, whilst the property of the plaintiff was being seized and carried away, is not in law guilty of any participation in the said trespass, and they should find a verdict for the defendant Henry Shepherd," Which instruction the court refused to give to the jury, but in lieu thereof gave the following: "The court instructs the jury that if from the evidence before them, they believed that the defendant Henry Shepherd was ignorant of all design or purpose upon the part of the rebel forces to seize and carry away the property of the plaintiff when they passed his house, that he left his home for the scene of the trespass with no design or purpose of aiding, assisting or encouraging them in the said act of trespass, but for the purpose of relieving two union citizens resident there, whose arrest he regarded as probable under the circumstances, that whilst at the scene of the trespass he did nothing by word or deed, to aid, assist or encourage the seizure of the plaintiff's property, or to benefit himself by its seizure, then the said Henry Shepherd, although present during a portion of the time whilst the property of the plaintiff was being seized and carried away, is not, in law, for that reason guilty of any participation in the said trespass, and they should find a verdict for the defendant Henry Shepherds unless for other reasons, and upon the principle enunciated in other instructions given in this cause, they find him liable." To the opinion of the court refusing the instructions asked for, and granting the instructions given, the defendant excepted.

The defendant Henry Shepherd also moved the court to instruct the jury, "That to maintain the present action against the defendant Henry Shepherd for the goods and property alleged to have been taken in the plaintiff's declaration, said plaintiff must show by his evidence that said Henry Shepherd actually participated in the trespass and taking complained of, either by having been personally present, concurring and aiding in the same, or having personally encouraged, advised, instigated or requested the said trespass, or that the alleged trespasses were committed for his benefit, or for the benefit of himself and others confederated with him, for a common unlawful purpose in furtherance of the same, or that he assented to or acquiesced in the same after the commission thereof, and that it is not sufficient for the plaintiff to show that the said Henry Shepherd was in the vicinity of said trespass and did not oppose the same, or that he received from one engaged in the trespass an article of property taken from the plaintiff, unless the jury further believes that such articles were originally taken for the use of the said Shepherd, and by and for the use of those with whom the said Shepherd had confederated, for the unlawful purpose of committing the trespass complained of by the plaintiff." Which instruction the court...