¶1The opinion of the court was delivered by
¶2In this case there was an affray, in which a father, mother, and daughter were engaged on one side, and a father and minor son on the other, in the course of which the plaintiff Ada-line B. Morley, the daughter, was very severely injured. Upon the close of the plaintiff’s testimony, at the request of the counsel for the defendant, the court directed a verdict in favour of Ranson W. Coolbaugh the father, and he was examined as a witness for his son, the other co-defendant. 'To this action of the court, the counsel for the plaintiff excepted, and the question is, whether, upon the evidence, this was a proper exercise of judicial discretion, which should be “ regulated, not merely by the fact that at the close of the plaintiff’s case no evidence appears to affect him, but by the probabilities whether any such will arise before the whole evidence in the cause closes.”
¶3This fight, in which all these persons were engaged, had its origin in an old dispute about a right of way, in which, of course, all the members of both families felt an interest, and the father and son were so intermingled, that it was impossible for a court to say that there was no evidence upon which a jury could not have found them jointly guilty. The court, therefore, erred in directing, a verdict of acquittal.
¶4Judgment reversed, and venire de novo awarded.