Brown v. Perkins

83 Mass. 89 | Mass. | 1861

Bigelow, C. J.

1. The inquiry put to the witness called by the defendants concerning the liquors found in the shop at the time of the alleged trespass, was competent. It was too late for the plaintiff to object to the question after he had voluntarily testified on the same subject; nor were the defendants bound to take his disclaimer of damages on account of the destruction of liquor after he had put the fact in evidence as part of his case. Besides, the inquiry related to a fact, which constituted a part of the res gestee, on which the plaintiff relied to support his action, and the defendants had a right to insist that it should be laid before the jury. The plaintiff could not select such facts as he desired to prove, and exclude others which were connected with the same transaction.

2. The evidence at the trial tended to show, that, by a concerted action or conspiracy, many persons assembled together with a design to commit unlawful acts by trespassing on the premises and destroying the property of others whom they supposed to be engaged in an unlawful and obnoxious traffic; and that, in pursuance of this common design, they broke and entered the shop of the plaintiff, and there injured and destroyed various articles of personal property. It also appeared that both the defendants were present during the perpetration of these unlawful acts on the premises of the plaintiff; and there was evidence which tended to prove that both of them, if they did not actively participate in the commission of the unlawful acts, were nevertheless there in pursuance of the common design, and wer sympathizing with and giving countenance to those who were engaged in the work of destroying the plaintiff’s property. Upon this point, however, the evidence was contradictory; the defendants contending that they were there as spectators only innocent of any combination or conspiracy, and in no way participating in or encouraging the unlawful acts of others. This was the great contention between the parties at the trial. In this posture of the case, it was essential to a fair and impartial trial and to the due protection of the rights of the plaintiff, that a precise and accurate instruction should be given to the jury, prescribing the rule of law by which a party who is present at the commission of a trespass, but not actively participating therein, may be held liable as a trespasser for aiding and abetting the unlawful act. In this particular the rulings at the trial were not sufficiently explicit. By omitting to give the instruction asked for by the plaintiff in his fourth prayer, and substituting in its stead another ruling, we think the court left the case to the jury without a clear, intelligible, and exact statement of the rule of law adapted to the facts in proof and necessary to guide them in making a proper application of the testimony. The effect of the instruction given to the jury was to lead them to believe that the defendants could not be held liable as principals for aiding and assisting in the unlawful acts by countenancing and approving the measures which were taken, or by making no opposition or manifesting no disapprobation of them, unless they stood in such relation as would naturally enable them to exercise some authority, control or influence over the actors ; as where the actors are wives or children, especially daughters, and the persons present are husbands or fathers of such actors. This was clearly erroneous ; not only because it annexed a limitation or qualification to the rule by which aiders and abettors are held to be principals, which does not exist, but also because it omitted to meet that part of the evidence which tended to show that both the defendants were present, giving aid and assistance to the actors in the unlawful enterprise, towards whom they stood in no such relation as is contemplated in the instructions. We do not however, mean to say that we give our sanction to the fourth instruction asked for by the plaintiff as containing a just and correct statement of the law. The first clause is too broad and sweeping in its definition of what legally constitutes an aiding and abetting of an unlawful act. It is not accurate to say that all those present at the commission of a trespass are liable as principals who make no opposition or manifest no disapprobation of the wrongful invasion of another’s person or property. The true rule on that point is this : any person who is present at the commission of a trespass, encouraging or exciting 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. Foster, 350. 1 Hale P. C. 438. On the other hand, it is to be borne in mind that mere presence at the commission of a trespass or other wrongful act does not render a person liable as a participator therein. If he is only a spectator, innocent of any unlawful intent, 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. 1 Hale P. C. 439. Roscoe Crim. Ev. (2d ed.) 201.

3. Upon another point, also, we are of opinion that the in structions were deficient in substantial accuracy. There was evidence in the case which tended to prove that the shop of the plaintiff at the time of the alleged trespass was locked, and that it had not been opened for several days prior thereto on account of the plaintiff’s sickness. If this was so, the mere entry into the premises of the plaintiff was clearly without license either express or implied. It would have been otherwise if the shop had been opened. In this aspect of tl e evidence, the jury should have been told that if they found there was no license, either express or implied, to enter the plaintiff’s shop, the defendants were liable for nominal damages for the entry of the female defendant as a breach of the plaintiff’s close, although they would not be liable for further damages after such entry unless she aided and abetted the unlawful acts perpetrated therein; and if she did so aid and abet, they would be liable only for such damages as were done subsequent to such entry and while she so aided and abetted. This instruction was necessary in case the jury should find there was no proof of any aid or assistance given to the actors in the original trespass by the female defendant prior to her first entry into the plaintiff’s premises. If they did so find, then it was essential that the legal effect of her actual entry on the plaintiff’s premises, if made without license, should have been fully explained to them.

Exceptions sustained.