"This is a writ of error prosecuted by the defendants to a judgment for the plaintiffs in an action of trespass for an assault and battery alleged to have been committed upon the plaintiff Ann, the wife of the other plaintiff.
"We are of the opinion that the circuit court erred in refusing to instruct the jury, at the instance of the defendants, to find for all of them, except the defendant Metcalfe. He is the only one of the defendants proven to have touched the defendant Ann, and against the other defendants there is no evidence conducing in the slightest degree to prove them guilty of committing any assault or battery upon her, or of any intention to do so.
"It is true that it was proved that the other defendants confessed that they were at the house of Connor when the assault and battery charged is alleged to have been committed, and it was also proved that Metcalfe confessed that he and the other defendants had gone there for the purpose of taking from Connor by force an idiot boy whom he had in his custody. But the circumstances of the other defendants being at Connor's house, there is no evidence they were there for any unlawful purpose; nor can it of itself be sufficient to render them responsible for any act done by Metcalfe in which they did not participate; and the confessions of Metcalfe are certainly not legitimate evidence against the others to prove the unlawful purpose with which they went to Connor's, and thereby to charge them with the consequences of his act."
Now, to all appearances, they went there together; to all appearances, they went there for the one purpose, and Metcalfe, the man who really did the mischief, confessed that they all went there for the one purpose, but the court held that that was not sufficient.
"Where several agree or conspire to commit a trespass, or for any other unlawful purpose, they will, no doubt, all be liable for the act of any one of them done in execution of the unlawful purpose; and when the agreement or conspiracy is first proved by other evidence, the confession of one of them will be admissible evidence against the others. But it is well settled that the confessions of one person cannot be admitted against the others to prove that they had conspired with him for an unlawful purpose."
Now, the next evidence that I wish to allude to, gentlemen, is the evidence of Mr. Walsh, and I will only say a few words, because it has been examined and it has been ground to powder. Everything in this world is true in proportion that it agrees with human experience; and you can safely say that everything is false or the probability is that it is false in proportion that it is not in accordance with human experience. Other things being equal, we act substantially alike.
Now, when anything really happens everything else that ever happened will fit it. You take a spar crystal, I do not care how far north you get it, and another spar crystal, no matter how far south you get it, and put them together and they will exactly fit each other—exactly. The slope is precisely the same. And it is so with facts. Every fact in this world will fit every other fact—just exactly. Not a hair's difference. But a lie will not fit anything but another lie made for the purpose—never. It never did. And finally, there has to come a place where this lie, or the lie made for the sake of it, has to join some truth, and there is a bad joint always. And that is the only way to examine testimony. Is it natural? Does it accord with what we know? Does it accord with our experience?
Now, take the testimony of Mr. Walsh, and I find some improbabilities in it. Just let me read you a few:
1. Bankers and brokers do not, as a rule, loan money without taking at least a note. That is my experience. And the poorer this broker is, the less money he has, the more security he wants. He not only wants an indorser but he would like to have a mortgage on your life, liberty, and pursuit of happiness. That is the first improbability.
2. Bankers and brokers do not, as a rule, take notes that bear no interest, or in which the interest is not stated. People who live on interest find it always to their interest to have the interest mentioned—always. I never got a cent of a banker that I did not pay interest, and generally in advance.