
    (67 Hun, 543.)
    LEWIS v. SHULL.
    (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    Slander—Criminal Charge—Evidence op Truth—Reasonable Doubt.
    Defendant is not required, in an action for slander in charging plaintiff with theft, to prove the truth of the charge beyond a reasonable doubt, but by a preponderance only.
    Appeal from Montgomery county court.
    Action by William Lewis against Alfred W. Shull. Judgment and order denying a new trial, from which defendant appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    C. E. Phillips, (Westbrook & Borst, of counsel,) for appellant.
    Weller & Moore, for respondent.
   MAYHAM, P. J.

This action was brought for the alleged speaking of slanderous words by the defendant, of and concerning the plaintiff, in charging the plaintiff with stealing 12 bushels of defendant’s oats. The answer admits the speaking of the words, and alleges their truth in justification. There was no direct evidence on the trial of the felonious taking of the defendant’s oats by the plaintiff, but the defendant proved circumstances and facts upon the trial from which he claims that the jury should have found the charge made by him was true. We think, .under the evidence in this case, it was a proper question for the jury to determine, whether or not the justification ivas established, and, unless their verdict might have been improperly influenced by some misdirection of the judge, their finding upon that question cannot be disturbed on this appeal. The defendant insists that there was such misdirection by the learned county judge, and that by the charge the burden was cast upon the defendant of satisfying the jury, beyond a reasonable doubt, that the plaintiff was guilty of the larceny charged, as in criminal cases, instead of proving, as in civil cases, his affirmative defense by a preponderance of evidence. On the trial the judge, in various forms of expression, charged- the jury that the defendant must establish his justification beyond a reasonable doubt, to which I think there were exceptions by the defendant sufficiently specific as to present the question of the correctness of such charge.

The learned judge, among other things in his charge, upon this point, says:

“Now, then, in this case, you must consider it just the same, exactly, as if you were trying this plaintiff on a charge of stealing, and he was before indicted by the grand jury, presented upon trial, with the district attorney upon the one side, and the counsel upon the other. Is there evidence enough in the case here, if presented in such a case, for you to be satisfied that this man did steal these oats? The evidence must be just as broad as the charge. It must convince you that he is a thief, and that he stole these oats. ”

This, I think, is equivalent to charging the jury that to establish the justification the defendant must satisfy the jury by proof of the guilt of the plaintiff beyond reasonable doubt; and the learned judge, in another part of his charge, says:

“If you come to the conclusion that that is not true,—that the defendant has not shown to you conclusively, beyond the shadow of doubt, that this plaintiff is a thief,—then you Will find the amount of damage that the plaintiff is entitled to. ”

Does the rule obtain in civil actions of this character? We think not, within the recent authorities in this state. It is true that, by the English rule, proof beyond a reasonable doubt is usually required, to establish a charge of crime in a civil action. But that rule does not seem to have been followed by the recent cases in this state. In Indemnity Co. v. Gleason, 7 Abb. N. C. 334, 352, Earl, J., in pronouncing the opinion of the court of appeals, says:

“In such an action the plaintiff is not bound to establish any fact so clearly that it is free from doubt. All that is required of him is that he shall satisfy the jury by a preponderance of evidence; and he is never called upon to free their minds of all doubt. ”

While the learned judge, in these remarks, refers to the plaintiff, it needs no argument to show that the same rule is applicable to a defendant when he asserts an affirmative proposition in his defense, which he is called upon to prove.

In Johnson v. Insurance Co., 25 Hun, 251, this question arose, when the answer set up that the' fire out of which the plaintiff claimed to recover for loss on his policy was caused by arson committed by the plaintiff, and the court held that the defendant was not required to show the arson beyond all reasonable doubt, as required in the prosecution of an indictment for arson, but that such defense might be established upon a preponderance of proof, as required to establish a fact in civil actions. In Seybolt v. Railroad Co., 95 N. Y. 562. it was held that the party upon whom rests the burden of proof in civil actions is not bound to establish a case free from reasonable doubt. He performs his obligations by presenting a preponderance of evidence. In this case, Ruger, C. J., quoted with approbation the rule upon this subject as stated in 3 Greenleaf’s Evidence, (section 29,) as follows:

“A distinction is to be notedbetween civil and criminal cases in respect to the degree or quantity of evidence necessary to justify the jury in finding their verdict. In civil cases their duty is to weigh the evidence carefully, and to find for the party in whose favor the evidence preponderates, although not free from reasonable doubt. But in criminal cases the party accused is entitled to the benefit of the legal presumption in favor of innocence, which in doubtful cases is always sufficient to turn the scale in his favor. ”

We see no reason why this rule does not apply to the case at bar; and, tested by it, the learned judge held the jury to a standard of proof not exacted in civil cases, such as this, which we cannot say did not influence their verdict to the defendant’s prejudice. We think, for this reason, the judgment of the county court should be reversed.

Judgment reversed, and a new trial ordered; costs to abide the event. All concur.  