
    The People of the State of New York, Respondent, v. James Levalie, Appellant.
    
      Primes — charge as to the sufficiency of a preponderance of evidence-.
    
    At the close of a charge made upon the trial - of James Levalie for the crime of assault in the second degree his counsel asked the court to instruct the j ury as: follows : “In order to convict the defendant of the alleged, offense you must find that the People have produced more than a preponderance■ of evidence ;; simply a preponderance of evidence will not convict. The'People must produce evidence to satisfy the jury .that he is guilty beyond a reasonable doubt.” The court replied : “ The last clause I charge, but I decline to charge the first, because if is not the law.”
    
      Held, that there must be a new trial;
    . That the jury were told, in effect, first that a mere preponderance of evidence would suffice to convict, a proposition which was. erroneous, and immediately after were told that they could not convict unless the defendant’s guilt was established beyond a reasonable doubt; that the- charge was, therefore, contradictory and confusing, and the jury might possibly have been thereby misled.
    Appeal by the defendant^ James Levalie, from a judgment of the. County Court of Kings county in favor of the plaintiff,' entered in the office of the clerk of the county of Kings on the 26th day of March, 1896, upon the verdict of a jury convicting him of the crime of assault in the second degree.
    
      D. Humphreys, for the appellant.
    
      Everett Caldwell, for the respondent.
   Willard Bartlett, J.:

We do not see how it is possible to uphold this judgment. At the close of the charge the counsel for the defendant asked the court to instruct the jury as- follows: “In order -to convict the defendant of the alleged offense you must find that the People have produced more than a preponderance of evidence — simply a preponderance of evidence will not convict. The- People must produce evidence to satisfy the jury that he is guilty beyond a reasonable doubt.” To this the learned trial judge responded: “ The last clause I charge, but I decline to charge the first because it is not the lawto which refusal the defendant’s counsel duly excepted.

The instruction thus given in response to the foregoing request was contradictory and confusing. The jury were told in effect, first, that a mere preponderance of evidence would suffice to convict, and in the very next breath that they could not convict unless the defendant’s guilt was established beyond a reasonable doubt. It is impossible to be certain that they did not act upon the first and erroneous proposition instead of upon the second and correct one. We cannot doubt that the error into which the trial judge fell in refusing to charge the whole of the request arose from inadvertence or a misapprehension of the precise instruction asked; but whatever the cause of the mistake its effect upon the jury was the same, and may have induced them to convict the defendant upon less cogent evidence than the criminal law requires. It is essential to the due administration of justice in our criminal courts that jurors should be made to comprehend clearly the insufficiency of a simple preponderance of evidence to justify a conviction, as distinguished from evidence which leaves no reasonable doubt of the defendant’s guilt.

The judgment should be reversed and a new, trial granted.

All concurred.

Judgment reversed and new trial granted.  