The opinion
Sedgwick, Ch. J., (dissenting).
In my judgment there was evidence to support the verdict against Simon Dessau and David Dessau. The rule seems to be correct as given in 3 Greenlf.’s Ev., § 41. It is that mere bodily presence, without an attempt to prevent a crime, though it will not of itself constitute guilty participation, is evidence from which a jury may infer assent and concurrence. The note 6 to the section cites from Brown v. Perkins, 1 Allen, 98 , that “ proof that a person is present at the commission of a trespass without disapproving it or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same.”
There are- several circumstances beside that of mere presence, that enabled the jury to determine that David Dessau assented to and concurred with Simon in causing the plaintiff’s arrest. One of these was *83 that in his presence, with his knowledge, his clerk was sent to find the policeman that made the arrest. A permission to use an agency that he controlled was evidence for the jury as to assent to the purpose for which it was used.
The jury were at liberty to find the plaintiff’s testimony true in the face of its contradiction by the defendants. The jury might have found, for instance, that just before David Dessau sent for the policeman, he said something in a whisper to Simon. Assuming that this might be of itself no proof against Simon, yet when Simon denied that there was any such whispered conversation, the jury could find that the reason for the concealment of the fact was that, if the truth had been told, it would have appeared that Simon encouraged in that conversation the arrest. Similar considerations are connected with the rest of defendant Simon’s testimony which the jury discredited.
I think the judgment should be affirmed, with costs.