
    Miller vs. Sweitzer.
    A and B assaulted and beat C. A was arrested and tried — B not airested. On the trial the prosecution offered evidence as to a certain wound inflicted upon C by B. Objection was made that as A was prosecuted alone and as it did not appear that there was any concert of action between Aand B in makingthe assault, the evidence was inadmissible.— Held, That the proposed evidence should go to the jury.
    Error to Wayne Circuit.
   Opinion by

Graves, J.

This was an action on the case by Sweitzer against Miller to recover damages alleged to have been occasioned by an assault and battery. Loss of business- and the expenditure of money for medical purposes were charged. Plaintiff offered evidence tending to show that he called at the grocery of Miller on business, when an altercation occurred between himself and Miller’s wife respecting payment for some beer which she claimed he had purchased on a previous occasion. Sweitzer on the stand testified that on his refusal to pay Mrs. Miller she took his bat and threatened to take his watch. That he sought to regain his hat, whereupon Mrs. Miller thrpw him down, held him, and called to her husband to come and kill him if he did not give up his. watch or pay for the beer. The defendant then seized him about the neck and stvuck him several blows, while Mrs. Miller struck him several times,in the head with a hatchet. The last evidence was objected to as having nothing to do with Sweitzer. Dr. Granger was asked if he could tell how the wounds on the head were caused, bat an objection was taken on the ground that there was no evidence going to show that Sweitzer struck the blows on the head. The objection was overruled, and the witness stated that the wound must have been made with a blunt instrument something harder than the fist. The questions in the ease arose on the refusals of the Court to sustain the objections to the admission of testimony.

Plaintiff in error took the ground that as he whs prosecuted alone, and it did not appear that there was any concert of action between himself and his wife, or that his acts naturally and ordinarily produced the blows given by his wife, the evidence respecting her assaults were inadmissible. The Court, however, held that the husband and wife were clearly, according to the testimony, engaged in the assault together, and that the whole evidence should go the jury, who were the judges of the facts.

The judgment of the Circuit Court is affirmed with costs.  