
    Julius M. Wolff vs. N. A. Cohen, A. N. Cohen, and L. Cohn.
    In an action for assault and battery no evidence implicating one of the defendants was given by the plaintiff, but the defendants in their cross-examination of a witness proved that all the defendants had been indicted and convicted for the same offence: — Held, that this was sufficient evidence to authorize a verdict against all the defendants.
    That the defendants had been punished criminaliter for the same offence, cannot he shown in mitigation of damages- in the civil action.
    New trial on the ground of excessive damages, refused.
    BEFORE WARDLAW, J., AT CHARLESTON, SPRING TERM, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    “ Action of trespass for assault and battery; damages laid at twenty thousand dollars. Plea, non eul.
    
    
      ' “ The material evidence here follows, for plaintiff:
    
      “ A. N. Lester. — Was clerk in the store of N. A. Cohen & Co., on the' bay, wholesale clothing — partners, N. A. Cohen & Leopold Cohn. Aaron N. Cohen (son of N. A. Cohen) was doing, for himself, retail business of like kind on King street, and so was the plaintiff, Wolff. By directions of one or both partners, I carried this letter and delivered it to plaintiff, at his store— it is in the handwriting of Cohn. Letter addressed to J. M. Wolff, King street.’
    “ ‘ Sir,' — You will please call at our store on business of importance.
    “ ‘N. A. Cohen & Co.
    
      “ ‘ Charleston, November 4, 1852.’
    
      “ After doing some other business I returned to the store, and as I entered the front door of the store, I saw plaintiff go .out of a side door — he was moving, and at some distance; but seemed to have been beaten, as his ejes were bruised. I went to the second story, found N. A. Cohen there — recollect nobody else. Aaron N. Cohen and L. Cohn, I think, were about the premises. On the second floor I saw signs of blood and water. I did not go into the third story. Dr. A. Pelzer passed up or down. N. A. Cohen had cut his finger; suffered from it, and was attended by a physician. I do not know what the previous relations of the parties were. I do not recollect having ever before seen the plaintiff at the defendants’ store. No efforts have been made to keep me from testifying.
    “ II. W. Schroeder, Ilsq. — I have been of counsel for plaintiff —expect to be paid, whether he recovers or not — no arrangement made about the fee. I brought the case to Mr. Yeadon, and he insisted that I should be attorney on record; although I desired to withdraw from the case.
    “ I was at plaintiff’s store, buying a pair of gloves for a Masonic procession, when Lester brought this letter, saying that Mr. Cohen had desired him to hand it. Plaintiff read it, and handed it to me. Plaintiff walked down King street with me; we parted in Church street, I went to my office, in St. Michael’s alley, and he toward defendants’ store. After half an hour, Pat. Dunning, constable, brought into my office a man that, at first, I did not know, but soon discovered to be the plaintiff — he was beaten, bloody, swollen, and disfigured. I asked what was the matter. Plaintiff made no answer, but there seemed to be a gurgling in his throat. He appeared to be fainting — was laid on a sofa. Dr. Graham came in with him — he is now dead. I went for another physician, believing that the plaintiff was dying. I called at Dr. North’s, he was not at home. I went for Dr. Mitchell, who came and administered. Plaintiff recovered, and Sol. Moses took him away in a buggy. [Clothes produced.] I cannot identify them. Plaintiff’s face was swollen, and the whites of his eyes were green when he came — there was a piece of court-plaster on his face.
    “ Gross-examination. — Dr. Graham was a man of ability, but intemperate — had an office in Church street, between Cohen’s and my office.
    “I think the plaintiff had one or two convulsions on the sofa — his muscles were rigid — he remained at my office a half hour or so. Was brought about ten o’clock, A. M. I saw him again about eight o’clock that evening, Dr. Graham was then coming out. Several times afterwards I saw him before he left his bed.
    “ I presume the plaintiff was brought to my office for the purpose of legal proceeding; but he was not then in a condition to make an affidavit. I advised both civil and criminal proceedings. The three defendants were tried under an indictment and convicted. I do not remember that any witness was examined besides the plaintiff, the prosecutor.
    
      “ Two painters, Doherty and Kidd, I understand were working at N. A. Cohen’s at the time of the affair — they were bound over — went away just before the former trial; were subpoenaed, and went away again ten days ago.
    “ The letter fell out of the plaintiff’s pocket in my office, and has been in my possession ever since. The plaintiff was confined to bed about a week; bruises visible on him sometime afterwards.
    “ W. Bhett, JEsq. — At the office, thought plaintiff had convulsions ; did not know Graham was a physician, and advised Schroeder to call a physician. Did not at first recognize the plaintiff, he was so bloody and swollen; think I have seen worse cases of beating, but, in the bustle, I thought his life was in danger.
    “ Henry Buist, JEsq. — In the office just before Dr. Mitchell came, and just after the convulsion spoken of. Plaintiff was well beaten. I did not recognize him.
    
      “Dr. North. — Plaintiff’s physician. I saw him twice at his own house, and as Dr. Graham was attending, I turned the case over to him, there being no necessity for consultation. I dressed one wound with a few straps. There were cuts about the forehead and cheek — evidently a severe beating, with more than two blows, but not dangerous. I saw no sign of convulsion — got there some hours after the affair.
    “ Dr. Pelzer. — After breakfast, L. Cohn stopped m,e in the street, and requested me to go to his store. I went; was told that Mr. Cohen was up stairs ; went up; found a person sitting on a bench, and N. A. Cohen in front of him on a box,, all quiet. Water had been used, and the face of the person (that I did not then know, but now take to have been the plaintiff) had been washed; a piece of plaster had been put on his nose, and another above one eye. He complained of his chest, but I saw no bruises on it. When I went up (third story I think it was) N. A. Cohen asked me what I wanted. I said that Mr. Cohn had sent me. Cohn followed me up, and soon Aaron N. Cohen came up. Whilst I was talking, in a very few minutes after I went up, the plaintiff got up and walked down. He went without difficulty, and I did not think the beating was anything serious; not so bad as Mr. Schroeder’s description makes it.
    “ After the plaintiff went, N. A. Cohen showed me his hand; there were two or three bruises on it; he said he had been bitten.
    “ George Prince. — Have attended a good many cases as a Thompsonian practitioner. Went as a neighbor to see the plaintiff, on the evening of the beating. He was in bed, in a convulsed way. Dr. Graham was there.
    “ Gross-examination. — His doors were closed one or two days.
    
      
      “Dr. Mitchell. — Not physician of any of the parties. Was called; went; recommended cold water. Dr. North was announced, and I came away after' a moment’s stay. Plaintiff was in a chair; seemed to have received two or three severe blows. I saw no signs of convulsion.
    
      “John Gf. Ohalh. — Saw the plaintiff in bed — bruised and fainting.
    “ J. J. Bluett. — Two or three days after the affair, went to arrest the plaintiff under warrant taken by N. A. Cohen; found him unfit to be removed; beaten.
    
      “ Theodore Speisegger. — Saw Wolff at home on the night of the affair; my compassion was moved.
    
      “Jacob Simon Jacob. — Heard N. A. Cohen say Wolff would gain the first suit, and lose the next.
    “ Thomas Allison. — Saw Wolff in bed on the day of the affair; badly beaten; hardly recognized him.
    
      “ Patricio Dunning. — Saw a man come down Church street with a handkerchief to his face; said he had been beaten; seemed not to know how to go, I assisted Mm. Dr. Graham now joined us.
    
      “ No evidence was offered on the part of the defendants.
    “ The jury were addressed by two counsel on each side.
    “In the opening address, one of the counsel for the defendants spoke of the heavy punishment which the defendants had already endured.
    “ One of the counsel for the plaintiff stated the sentences which had been passed upon the defendants in the Court of Sessions, some of the remarks made by the judge on that occasion, and some other particulars which attended the State case; he spoke of the great fortune of the defendant, N. A. Cohen, and of the plaintiff’s narrow means. I was often inclined to interfere; but could at no time be sure that the decent administration of justice, and the unprejudiced consideration of the evidence by the jury, would be promoted by my interference.
    “I said to the jury, that concerning the propriety of allowing to one beaten the advantage of remedies both civil and criminal, there had been at different times various opinions and practice — that now it was usual to suspend the sentence in the criminal case until the civil was tried; but that where (as in this case) sentence was already passed, it did not appear to me that the range of a jury’s discretion, in awarding damages, was thereby narrowed; but that it was sufficient, on that head, to say that there was no evidence (independent of the statement of counsel) of what the punishment, which had been imposed for the satisfaction of criminal justice in the case, had been, and therefore that matter should be laid out of view.
    “The jury, in a verdict of peculiar form, found for the plaintiff five thousand dollars aghinst N. A. Cohen; two .hundred dollars against Leopold Cohn, and one hundred dollars against Aaron N. Cohen.”
    The defendants appealed, and now moved this Court for a new trial, on the grounds:
    1. That the fact of the defendants having been indicted and convicted for the same assault and battery as the cause of action in this case being in evidence before the jury; and the plaintiff’s counsel having stated the particulars of the sentence of the Court of General Sessions, it is respectfully submitted that his Honor erred in charging the jury that they could not consider the criminal prosecution and the consequent punishment of the defendants, as circumstances in mitigation of \
    2. That there was no evidence whatever to implicate the defendant, Aaron Cohen.
    
      3. That there was no evidence whatever to implicate the defendant, Leopold Cohn.
    4. That, as there was no evidence whatever of the fortune or means of the defendants, the jury had no excuse for so enormous and disproportionate a verdict against the defendant, Nathan A. Cohen, except the assertions of the plaintiff’s counsel about the great wealth of this defendant, which were unwarrantable according to the rules and practice of the Court, and calculated improperly to influence the jury.
    5. That the verdict was excessive, unreasonable and capricious, and unwarranted by the evidence; and that if, under all the circumstances of this trial, it be confirmed by the judgment of the Court, a dangerous precedent in the administration of justice will be established.
    
      Northrop, Memminger, for appellants,
    cited 2 Hill, 625; 1 Green. Ev. § 538; 1 Stark. Ev. § 71-2; Mayby vs. Avery, 18 Johns. R. 352; 5 T. R. 257; Poppenheim vs. Wilkes, 2 Rich. 104; McConnell vs. Sampton, 12 Johns. R. 234; 1 Strob. 313; Sedg. on Dam. 39.
    
      Mayne, Yeadon, contra.
   The opinion of the Court was delivered by

GloveR, J.

Not denying the participation of Nathan A. Cohen, the appellants have earnestly insisted, that the other defendants are not implicated. All who act in concert, encourage one another, and co-operate, are liable in trespass. No witness proves by whom the battery was committed, but there are circumstances which, without explanation, show that Cohn was a prominent actor. In the name of the firm, of which he was a partner, he wrote the letter soliciting an interview with the plaintiff, the professed object of which was business of importance, and the only consequence which appears to have followed was the battery complained of. The result of this visit cannot be reconciled with the innocence of Cohn, and the reasonable inference is, that the real intention was to commit violence by concert, and under the pretence of business. By his prompt agency a physician'was procured, which removes all doubt of his presence when the trespass was committed. The probable presence of Aaron N. Cohen about the premises, and the fact that Dr. Pelzer, after his arrival, saw him, are too slight circumstances to authorize the presumption that he was implicated. Prima facie, if not conclusive .evidence, however, implicating both A. N. Cohen and Leopold Cohn, was furnished by the defendants in their cross-examination of Sehroeder, who proved that. the defendants had been indicted and convicted for the same assault and battery. It is their evidence, and they cannot now object to it on the ground, that, as to the matters involved in the issue, it was res inter alios acta. In this form of action, neither the record of their conviction, nor parol evidence of it, would have been admissible for the plaintiff, unless received without objection, or the defendants had pleaded guilty to the charge in the indictment.

Another ground relied upon in support of the motion for a new trial is, that the punishment of the defendants criminally, should have been submitted to the jury in mitigation of damages. The objection taken by the appellants to the introduction of evidence showing the conviction of the defendants, would equally apply to any proof offered in regard to the punishment. The indictment and civil action are prosecuted for the same trespass, but not by the same parties. One is an offence against society, the other a private wrong. The State punishes for a breach of the public peace; the individual recovers damages for the injury to his person, and where the compensation is beyond the actual loss, it may operate, incidentally, as a penalty, but not as a cumulative remedy. If the punishment of the offender should be permitted to influence the jury in their estimate of damages, the private remedy, which the law gives to the injured party, would be abridged. Where the prosecutor receives a part of the pecuniary penalty, it has been ■held, that his damages should be nominal, (Jackson vs. Bell, 8 Carr. & Payne, 316), but in this State he is entitled to none of the penalty,, and is not restrained from prosecuting both the indictment and civil action together. In Cook vs. Ellis, (6 Hill, 465,) the Court did not regard either the probable or actual punishment of the defendant, by indictment, in an action for damages. The parties, the nature of the offence, and the remedies, are different; and where circumstances of aggravation call for vindictive and punitory damages, the range of the jury’s discretion should not be narrowed by the sentence of the Court. Such, were the instructions of the Circuit judge, and they are approved by this Court.

The appellants have also submitted, in support of their motion, that the verdict is excessive, unreasonable and capricious, and unwarranted by the evidence.

In cases of tort, the amount of damages depends upon, and is so blended with questions of fact, that the control exercised by the Court over the verdict of a jury must rest upon the peculiar circumstances of each case. Whether the compensation shall exceed the actual loss or injury, or the evidence shall justify exemplary damages, it is the province of the jury to measure them. In the discharge of their duty, the law requires that they shall be indifferent between the parties, and not influenced by passion or prejudice. It is not perceived that they wore improperly influenced in this case, and there are circumstances from which a concert among the defendants may have been inferred, and also a purpose to inflict the battery without any provocation to justify or extenuate it. It is probable that this Court would not have come to the same conclusion, but a new trial will not be granted merely because the Court and jury differ in opinion about a question of damages. There is no legal rule to measure them, and by which the discretion of a jury may be controlled. We cannot conclude that the jury, in their estimate of damages, was influenced by • any improper bias, or that they exceeded the ■ reparation which such a trespass demanded. In actions of tort, a verdict free from the imputation of corruption, prejudice or passion, should be the end of litigation.

Motion dismissed.

O’Neall, Waudlaw, and Withers, JJ., concurred.

Motion dismissed.  