
    Grigsby vs. Moffat, et als.
    
    The circuit judge charged the jury that if the defendant threatened to whip the plaintiff out of the country, and plaintiff was afterwards whipped, it would in the absence of exculpatory evidence be a strong presumption against him; but if he had only expressed the opinion that he ought to be whipped out of the country, it would not he so strong a circumstance: Held, that there was no error in this charge.
    On the 8th day of February, 1838, John Grigsby instituted an action of trespass vi et armis, against W. Moffat, J. Moffat and J. Taylor, in the circuit court of Lincoln county. The damages were laid at $10,000.
    The plaintiff set forth as his cause of action that the defendants seized him in bed in the county of Lincoln, on the 6th day of February, 1840, took him by force to the forest, stripped him naked, and scourged him severely with rods.
    The defendants pleaded not guilty to the charge, and issue was joined thereupon. The defendants, upon affidavit of themselves and three others, satisfactory to the court, moved the court for a change of venue, on the ground that they could not get justice in the county of Lincoln. The order was accordingly made and the cause transferred to the county of Bedford, as the nearest adjoining county free from the like exception.
    
      The cause, was, after repeated continuances, submitted to a jury of Bedford county at the August term, 1840, S. Anderson, judge, presiding. It appeared that Grigsby was a resident in East Tennessee, and that he appeared in Lincoln county as a witness in a case between Moffat and one May; that on the evening of the 6th of February, 1840, he went to the house of Judith Ellis in the vicinity of Fayetteville, the county seat of Lincoln; that on the night of the 6th, between the hours of ten and eleven o’clock, three men entered the house of said Judith, seized Grigsby’and took him into an adjoining forest; that in the night Grigsby returned, stating that he had been severely scourged. He was bloody, and his back was much cut and lacerated, apparently with rods. There were some two or three persons in the house of Judith Ellis, but the night was dark, there was no light in the house, and they testified that they could not, therefore, state with any degree of certainty who the persons were who entered the house.
    One witness testified that she saw two of the defendants going on the evening of the 6th of February towards the house of Judith Ellis. Smith testified, that on the day before the plaintiff was whipped, he was with the defendant, William Moffat, on the pavement in Fayetteville, and Moffat pointed out May and said, “there comes May with his witness; how would you like such a man as that to swear against you? He is a d-d horse-thief, and belongs to a club of horse-thieves in the Cherokee nation. Such a man as that ought to be hickoried out of the country.”
    The defence of the defendants rested on proof going to show an alibi. There was submitted to the jury a mass of circumstantial proof on both sides, which it is not necessary here to set forth.
    Under the charge of the judge, which is set forth in the opinion of the supreme court, the jury rendered a verdict in favor of the plaintiff for the sum of $2000 damages. The defendants moved the court for .a new trial. This motion was overruled, and judgment rendered upon the verdict, The defendants appealed in error.
    
      James Campbell, for plaintiffs in error,
    
      Taul, for defendant in error.
   Gkeev, J,

delivered the opinion of the court.

This is an action for assault and battery against the plaintiffs in error, for whipping the défendant in error, and detaining him in custody. The part of the chai’ge of the court to the jury which it is insisted is erroneous, is as follows, namely:

“If the jury believed from the proof, that William Moffat, the evening before the injury was inflicted upon the plaintiff, threatened he would whip him out of the country, and the act he threatened was afterwards perpetrated, this, in the absence of proof exculpating him, would raise a strong presumption that he had done the act; but if the language used by Moffat the evening before the injury was inflicted, was substantially, that John Grigsby was a witness against him, that he was a d-d horse thief, and that he ought to be whipped out of the country, then the jury were to judge the import of such a declaration, and the intent which dictated it. If they considered the expression, under the circumstances, and the manner in which it was made, was a mere expression of an opinion, it would not be so strong a circumstance against him, but if as rational men, they would understand the expression, .considering the time, the allusion, and the circumstances under which it was made, as indicating a determination on his part to inflict the chastisement, it would be equivalent to an express threat, and afford a strong presumption of guilt, unless explained or rebutted by proof inconsistent with the presumption. Men have been convicted of criminal offences upon proof they had threatened to do an act, which was afterwards committed. But such proof would only furnish a presumption against the defendant using the expression.”

The meaning of this charge may be more briefly. expressed in the following language: “If the defendant threatened to whip the plaintiff out of the country, and he was afterwards whipped, it would, in the absence of exculpatory testimony, be a strong presumption against him, but if he had only expressed the opinion that he ought to be whipped, it would not be so strong a circumstance. Men have been convicted upon proof of threats, but such p.ropf would only furnish a presumption against the party making them.” Here it will be seen at once, that the judge does not mean that threats furnish an artificial legal presumption of guilt, but a natural presumption of mere fact, calculated to generate conviction in the mind, as derived from those connections, which are pointed out by experience. In this cause it is only circumstantial evidence. 3 Starkie, 1245, 1247. In this sense, Lord Coke’s violent presumption is used. Starkie (1246) says, that the case he puts “where a man is found suddenly dead in a room, and another is found running out of that room with a bloody sword in his hand,’ is .only a case of circumstantial evidence.

Th.at the court, in this case, uses the word presumption as synonymous with circumstance, is manifest from the manner in which he employs the term. He says, if the defendant made the threat, it is a presumption of guilt, but if he only expressed an opinion, it would not be so strong a circumstance; that is, the expression of an opinion, that the plaintiff ought to be whipped, would not be so strong'a circumstance against the defendant, as if he had threatened to inflict the whipping. We think, therefore, there is no error in the charge of the court. Let the judgment be affirmed.  