Little v. Tingle. statements made by Kelley in his examination in chief. The judgment is affirmed, with costs. 26 168 154 448 LITTLE v. TINGLE. ASSAULT AND BATTERY.-DAMAGES.-Suit for assault and battery against Held, that the instruction was right, and applicable to the evidence. APPEAL from the Henry Circuit Court. FRAZER, J.-This was an action for assault and battery by Tingle against Little and others. Answer, general denial; verdict and judgment for plaintiff for $2,000 in damages. The evidence was somewhat conflicting as to the exact part taken by Little in the assault and battery. The injuries Little v. Tingle. were shown to have been directly inflicted by the hand of another defendant, Fox, aided by still another, and encouraged by Little. The evidence was conflicting as to whether the chief injury, the loss of an eye, occurred before or after the defendant made himself responsible by giving encouragement. There was too much evidence in support of the verdict to warrant this court in reversing the judgment upon the ground that the verdict was against the evidence. The court charged the jury that if Little was not present at the beginning of the difficulty, but afterwards came up and aided and abetted Fox, by encouraging him to continue the assault, and Fox, in pursuance of such counsel, did continue the same, the plaintiff, Little, would, be equally guilty with Fox of such beating. The appellant complains of this instruction. We think it sound law, and applicable to the evidence. Another instruction was to the effect that if no injury was done after Little encouraged Fox, then the verdict must be for Little. This was surely not calculated to injure the appellant, and even if not good law, would not be an error of which he could avail himself in this court. Charges were asked by the appellant, and refused by the court, which were proper to be given; but there was no error in this, for the reason that the court had already given substantially the same charges. The jury was instructed that if the defendants jointly committed the battery, they were equally liable, and the damages must be assessed against them jointly. We think that this was correct on principle, and it is supported by the authority of numerous cases. Carney v. Reed, 11 Ind. 417. Nor was there any error in instructing the jury as follows: "The amount of damages is not fixed by law, but is left to your sound discretion; you should look to the nature and extent of the injury inflicted, the circumstances under which it was inflicted, and then say what is just and proper under Little v. Johnson. all the circumstances." If the appellant wished an instruction as to the distinction between nominal, compensatory and vindictive damages, which it is claimed should also have been given, he ought at least to have moved the court below to have given such an one. The judgment is affirmed, with costs. J. H. Mellett and N. H. Johnson, for appellant. W. A. Peele, J. B. Julian and J. F. Julian, for appellee. LITTLE V. JOHNSON. PRACTICE. DEMURRER.-A demurrer to a complaint on the ground that the complaint does not state sufficient facts, &c., will not present the question whether other parties ought not to have been joined as defendants. APPEAL from the Jennings Common Pleas. RAY, J.-Suit upon the transcript of a judgment obtained in Ohio, and assigned to the appellant by the judgment plaintiffs. A demurrer was sustained to the complaint, on the ground that it did not state facts sufficient to maintain the action. The objection presented in this court is that the judgment plaintiff's should have been made parties. No such question is presented by the demurrer, and as the transcript shows a personal service of summons upon Johnson, and a judgment entered against him, the facts stated are sufficient upon the demurrer, and it should have been overruled. Answers were filed to the complaint, and, upon a demurrer being filed to certain paragraphs of the answer, the court overruled the demurrer to the answer and sustained it to the complaint. As the ruling of the court below appears to have rested upon the ground of the Medler v. The State on the relation of Dunn. insufficiency of the complaint, we do not deem it proper to review the action of the court, as though the ruling had been made testing the sufficiency of the answer. The judgment is reversed, with costs, and the cause remanded, with directions to overrule the demurrer to the complaint. J. H. Vawter, for appellant. J. S. Harvey, for appellee. MEDLER V. THE STATE on the relation of DUNN. PRACTICE.-The Supreme Court will not reverse a case because a mere preponderance of the evidence, as it appears in the record, seems to be against the judgment. JURY-POLL OF.-The answer made by a juror when polled is a part of the proceedings of the court, and should be shown by a bill of exceptions. NEW TRIAL.-MISCONDUCT OF JUROR.-When a new trial is asked on the ground of the misconduct of a juror, it must be shown that the party was probably injured by such misconduct. BASTARDY.-EVIDENCE-In a prosecution under the bastardy act, the court below refused to hear evidence as to the amount of money necessary to maintain the child. Held, that this court will not interfere in such cases, unless the amount allowed is such as to show an abuse of discretion. APPEAL from the Hamilton Common Pleas. FRAZER, J.-The only question in this record is as to the sufficiency of the evidence to support the verdict. It was a bastardy case, and seeing the evidence upon paper, with no such opportunity as the judge and jury below had of determining upon the credibility of witnesses, it appears quite probable that the verdict should have been the other way. But this is not enough to justify us in reversing the 26 171 127 507 26 171 156 200 Medler v. The State on the relation of Dunn. case. To one who saw the witnesses and heard them testify, there may have appeared good reason for disbelieving some of them. The evidence was contradictory, and we must therefore assume that the judge who presided and overruled a motion for a new trial acted intelligently and upon sufficient cause. It is claimed that the jury was polled, and that a juror answered that "the verdict was not his judgment, but he only agreed to it." The record does not show this. It was, if true, a matter occurring in open court and a part of the proceedings, and should have been shown by a bill of exceptions. It appears by a sworn statement, in a written motion for a new trial, that "when a juror was polled" he made the answer already stated, as the defendant "is informed and believes." Probably the motion was overruled because the presiding judge knew the fact to be different. · Misconduct of the jury, too generally and indefinitely stated to be available, also appears in the same way, by the motion for a new trial. It is thus alleged: 4. "Because one or two of the jury, without leave of the court, read and commented upon a part of the charges of the court, and a part of the jury was thus misled and deceived. 5. Because a part of the jury conversed with persons outside of the court, during an adjournment, and while the case pending." How misled? How deceived? To whose prejudice? Did the improper conversations influence the jury against the defendant? Such a showing ought to have been made as would have enabled the court to judge whether this conduct was detrimental to the interests of the party complaining of it. was An instruction to the jury is complained of, but it was not made part of the bill of exceptions, nor was it, or the defendant's exception to it, otherwise made part of the record in the manner required by the statute. The instruction was not signed by the judge, nor was the exception on the margin signed by the defendant or his counsel. 2 G. & H. 200, 201. We cannot, therefore, examine the instruction. |