Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-03-02

Knox County. J. Warren Gray vs..
| Edwin f. Eaton. Rescript, Savage. J.
(NO Opiniom.
In the action of trespass for assault
and battery, the plaintiff claims that
he was struck by one Wood with
clam hoe, at the request and instiga-
ton of the defendant. The verdict was
for the defendant. The case is before
the court on the plaintiffs motion for a
new trial. on the usual grounds, and on
the further alleged ground that the
verdict is inconsistent with a verdict
rendered by the same jury in a case
tried with this one, for the plaintiff
against Wood, for the same assault and
battery.
There is no motion before us in the
Wood case and therefore the question
of Inconsistency between the verdicts
is not open to consideration. Neither
the allegation in the plaintiffs motion,
nor the docket entries in the Wood
case. which are printed. serve to bring
that case before this court.
II upon any ground the verdict in
this case was warrantable, the motion
Tor a new trial must be Overruled. And
tnere is one phase of the case. at least,
which JuStities the verdict. There is n
controversy between the parties as to
what the defendant said to Wood. The
plaintiff claims that the defendant.
whil" engaged in struggle with one
Whltc, and when the plaintiff was
about to interfere for Whites protec-
ton. urged Wood to put the clam hoe
into him." meaning the plaintiff, and
that afterwards Wood struck him with
the hoe. The defendant admits that he
called unon Wood for help. but he
claims that it was while the "scrim-
mage" was going on and after the
plaintiff had interfered-and Wood
who was a witness for the defendant.
admitted that the latter at some time
told Wood to put the clam hoe into
the plaintiff
The plaintiffs witness. Calderwood,
who was not very far away, testifies
that he did not hear the defendant call
on Wood for help in any way. White,
on the other hand, testifies that de-
PENDANT called on Wood in loud
voice for help. before the plaintiff be-
leved Calderwood's version. they were
plainly warranted in finding that the
defendants call for help did not occur
until the plaintiff. the defendant. White
and Wood were all close together. But
the "scrimmage." SO far as the plain
tiff. defendant and Wood were con-
cerned with one another began as We
think the jury were warranted in find
ing. almost Immediately after they
came together. although the plaintiff
claims that short interval of time
elapsed. While the defendant and
White were clinched. the plaintiff
struck the defendant on the head with
the butt of his revolver and then as he
testihes: II turned around quick and
the hoes were coming right for my
lace: that was when I got the clip in
the wrist" That was the only battery
complained of. After thos blow the
plaintiff pointed the revolver at Wood
with one hand and struck the defend
ant with billy several times. with the
other. 1t was either before. or it was
during the time that the plaintiff was
striking the defendant that the latter
called on Wood for help and it is i'm |
p"rtart ard vital to know whics.
II the plaintiff is correct in his state |
ment as It. when he was struck. We |
think IL was permissible for the lury. in