#### Mayfield and another, Plaintiffs in error, vs. The State, Defendant in error.

*April 9*

April *26, 1910.*

*>Criminal law: Assault by several persons: Gontinuous purpose: Liability of persons aiding: Separate trials: Evidence: Admissions: Instructions to jury: Immaterial errors.*

1. Where, in pursuance of a common design to compel an accused person to confess, several others took part in an assault upon him, and the unlawful purpose and action were continuous, although not all were present during the whole time, all those aiding, encouraging, or inciting the assault at or immediately prior to the time of its commission, and who were present when it was committed, are liable as principals.

2. In such a case it is within the discretion of the trial court whether to grant separate trials.

3. Where several persons are prosecuted for assault with intent to do great bodily harm or for assault and battery, even in the absence of proof of conspiracy admissions of one defendant may be received against him if the court then rules that this is the only purpose for which they are received and later instructs the jury that the admission of one defendant is not evidence against any other defendant but may be considered as against the person making the admission.

4. Where several persons are prosecuted for assault with intent to do great bodily harm but are convicted of assault and battery only, alleged errors in the instructions relative to the greater offense are immaterial.

Eeboe to review a judgment of tbe circuit court for Monroe county: E. C. Hig-bee, Circuit Judge.

*Affirmed.*

Eor tbe plaintiffs in error there was a brief by Masters, *Graves & Masters*and *G. M.*Perry, and oral argument by *Mr. Perry.*

Eor tbe defendant in error there was a brief by tbe *Attorney General*and *Thorwald P.*Abel, district attorney, and oral argument by *Mr. Abel.*

TimliN, J.

Tbe plaintiffs in error, hereinafter called defendants, were, with three others not before this court, pro*662ceeded against for assault with intent to do great bodily barm upon one Allen, and convicted of assault and battery. Defendants contend that tbe court erred (1) in refusing to grant them a separate trial; (2) in refusing to discharge tbe defendants; (3) in refusing to require tbe state to elect; (4) in rulings upon evidence; (5) in giving and refusing instructions.

Allen was a man about fifty-seven years of age, a vagrant wbo drifted into tbe village of Cataract and was banging around *Mayfield’s*saloon and sleeping in bis barn, where Baumel and Johnson, wbo also slept in this bam, reported that there was stolen from them while they slept a watch and some money. According to testimony on tbe part of tbe state, *Mayfield*with others came into Masterson’s saloon, found Allen there. *Mayfield*accused him of this theft, laid bands on him, shook him. Masterson forbade anything further 'in bis saloon, whereupon *Mayfield*took Allen out into tbe street and said: “Let us kill tbe-. Let us make him dig up.” .The others wbo were with *Mayfield*then assaulted and beat Allen for tbe purpose of making him confess. *Hebron*from a nearby hotel beard this fracas in tbe street and came over. *Mayfield*retired some little distance. Allen by this time was severely beaten by several men in this crowd and lay on the ground, while tbe blows which were administered to him and tbe oaths and vulgar language could be beard for a distance. Finally Allen called for *Mayfield*and said be would confess to him. *May-field*came in response and said: “If you have got tbe watch give it up; . . . tell where it is, and I will see that tbe boys won’t hurt you.” Allen then went to tbe bam with tbe crowd, including *May-field*and *Hebron,*and showed them where tbe watch which be bad stolen was secreted, and *Mayfield*then urged him to give up tbe money and threatened him with violence, and then leaving Allen in tbe bands of tbe others of tbe assaulting party left tbe bam and commenced to look elsewhere for tbe *663money. Tbe assaults upon Allen in tbe barn continued, *Hebron*remaining there. After a little time *Hebron*left, was absent a few minutes, and returned. Tbe attacking party placed a rope around Allen’s neck and threatened to bang him, also to drown him, and pulled on tbe rope. .While the rope was around bis neck *Hebron*and one Davis stripped Allen of bis shoes and clothing, except a shirt and vest. Allen was bleeding, bruised, and exhausted, and his condition appeared alarming, when one of the-assaulting party said: “Is the son-of-a-b-- dead ?” Hebron> who is a physician, felt of and timed Allen’s pulse, and said, “He is all right.” After this Allen was taken down from the barn by the attacking party into the street and it was said they were going to drown him. *Hebron*went along with them at a little distance behind, and soon after they reached a point in the street near the saloons *Mayfield*found the missing money in the sand or dust of the street. This was three hours or more from the time they first attacked Allen. They then let Allen go, brought him before a justice of the peace the next morning, had him fined $1 for something, and he left. *Hebron*held a light part of the time while the other members of the party were badgering or assaulting Allen and he also after-wards admitted to one Bussby participation in the affair. *Hebron*also took around an agreement in writing the next morning to the effect that the assaulting party should all stand together in the case and pay the fine of any one who was found guilty.

There is confessedly much evidence to the contrary of the above, but the foregoing was before the jury, and they must have found it to be true when they convicted the defendants. The learned counsel for the defendants first considers that there were three several and separate crimes, one in the saloon, one in the street, and one in the barn, and that each of the accused must be adjudged by his presence at or participation in either of these affrays, and in this way has worked *664out quite an ingenious argument in favor of bis clients to support bis first three assignments- of error. But we cannot take tbis view of the evidence. The state bad the right to treat the whole transaction, which was continuous in its object and purpose and in its restraint upon Allen and in its unlawful acts, as one transaction. The persons associated in this crime did not all strike or assault Allen, and the blows and assaults were interrupted or suspended from time to time for the purpose of urging Allen to confess or hearing his confession or moving him from place to place, but the continuity of unlawful purpose and action persisted throughout the entire transaction. *Hilmes v.*Stroebel, 59 Wis. 74, 17 N. W. 539; 12 Cyc. 186; *Rhinehart v.*Whitehead, 64 Wis. 42, 24 N. W. 401. It was discretionary with the trial court under these circumstances whether to grant a separate triaL *Emery v.*State, 101 Wis. 627, 78 N. W. 145. We do not think there was any abuse of that discretion shown.

The principal reason urged in support of the assignment of error relating to rulings on evidence is that alleged confessions or admissions of *Hebron*could not be competent as against *Mayfield,*nor those of Young against either, but that is answered by the fact that the court, by ruling and instruction to the jury, limited the evidence of admissions to the person making the admission, and ruled that such admission should not be considered in determining the guilt or innocence of any other defendant.

The instructions relative to the offense of assault with intent to do great bodily harm need not be considered;, because the defendants were acquitted of that offense by being found guilty of assault and battery.

The case was fairly submitted to the jury upon instructions substantially to the effect that if any one of the defendants did assault, beat, bruise, and injure Allen, and either or any of the other defendants were present aiding, encouraging, or inciting this assault, the latter were aiders and abettors *665and liable as principals, but that mere presence at sucb an assault did not render one liable wbo bad done no act to ■countenance or approve wbat bad been done by those unlawfully engaged. We think there was evidence from which the jury might properly infer that both *Mayfield*and *Hebron*aided and abetted the unlawful assault upon and battery of the man Allen, and that no substantial error intervened in the proceedings below, and the judgment must be affirmed.

*By the Court.*— Judgment affirmed.