
    Joseph Bradish v. Chester Blss.
    
      Evidence. Presumption of Innocence. Criminal Law.
    
    If in a civil action a question arises, the determination of which involves the establishment of the fact that either party has been guilty of a criminal act, the other party, in order to obtain a determination of such question in his favor, must overcome by a fair balance of testimony, not only the evidence introduced by the party so charged, but also the legal presumption of innocence which exists in every case.
    Trespass on toe freehold for burning the plaintiff’s barn. Plea, the general issue, and trial by jury, at the September Term, 1861, Peck, J., presiding.
    The plaintiff introduced evidence, which was all of a circumstantial character, tending to prove the issue on his part, and the defendant introduced evidence tending to prove the contrary. The whole evidence in the case tended to prove that if the defendant was guilty of the alleged trespass, he must have set fire to and burned the barn intentionally and designedly, and thereby committed the crime of arson; and it was so treated and claimed in argument by the counsel on both sides.
    The court charged the jury fully in the case, and no exception was taken to the charge by the plaintiff’s counsel except in the following respect: The cou; t told the jury that it was conceded by the counsel on both sides that if the defendant was guilty, he was guilty of burning the building by design, and therefore guilty of a high crime, a crime involving moral turpitude; and that in such cases it was necessary there should be what was sometimes called full proof; that in such cases there was in the outset a presumption of inuoceuce in favor of the defendant, and to be overcome by evidence; and that although this was a civil suit for private damages, yet, inasmuch as the act complained of was a high crime, involving moral turpitude, this presumption of innocence had its influence in the tidal of' the cause, and that more clear and satisfactory proof was necessary to warrant a verdict for the plaintiff than would be barely sutficieut in a common suit for a debt, or a common trespass involving no crime or moral turpitude; that the case need not be made out to a Certainty ; that pvpn in a criminal caso it was only necessary tp prove llio guilt of the accused beyond a reasonable doubt, and that, this being a civil suit, it was not necessary that the evidence should come up to that full measure of proof that would be required in a criminal ease, or if the defendant were on trial on an indictment for the crime of burning the building, when it would be necessary to make the ease out beyond a reasonable doubt; that in this case a lower amount or less measure of evidence was sufficient to warraut. a verdict of guilty, and yet more or stronger evidence was necessary than would be required in an ordinary civil suit for debt, or a common trespass where the defendant might be liable, and yet the act complained of not be of such a character as to amount to a crime, or involve moral turpitude, — that is, enough more to overcome'the presumption of innocence ; that it was for the jury, taking into consideration this presumption of innocence, to look at all the proof in the case, and if, under the circumstances, they were satisfied from the evidence that the defendant was guilty, such should be their verdict, otherwise their verdict should be for the defendant.
    To the portion of the charge above detailed, the plaintiff excepted.
    The jury rendered a verdict for the defendant.
    
      Wing, Lund & Taylor and J. A. Vail, for the plaintiff.
    
      Heaton & Reed and Dillingham & Durant, for the defendant.
   Poland, Ch. J.

The plaintiff claims that the court below instructed the jury substantially, that he was not entitled to recover, even if he satisfied the jury by a fair balance or preponderance of the testimony that the defendant burned his barn ; that the court undertook to lay down a middle rule between that of criminal cases, where the evidence must exclude all reasonable doubt, and of ordinary civil cases, where a fair balance suffices. If this be the fair construction of what the judgo told the jury, we think it was error, for the Jaw does not recognize such intermediate rule of evidence.

But we do not so understand the instructions excepted to, but only this, that the plaintiff in order to establish his right to a recovery against the defendant, upon his own theory of the defendant’s liability, assumed to prove that the defendant had been guilty of the crime of arson, a highly penal offence ; that in so doing the plaintiff assumed the burden of proving a fact, where the legal presumption was against him, that the fact did not exist, and that therefore the plaintiff must not only overcome the evidence of the defendant, by a fair balance in his favor, but also overcome this legal presumption in favor of the defendant, and against himself; that in such case not only no presumption or intendment could be made in favor of the existence of what the plaintiff attempted to prove, but the legal presumption was the other way, and therefore the fact must be found only when clearly established by the proof.

Regarding the charge as wo do, we think it uno: jectionable.

In ordinary civil cases, there is no legal presumption either way ; there is nothing criminal or illegal alleged against either party ; and the disputed issue is required to be established by the party upon whom the burden of proof lies, only by a fair balance of the evidence.

Jn many cases, sounding in tort, the defendant may be legally liable, and still be involved in no inteutional wrong, and no moral turpitude, and here the plaintiff encounters no legal presumption against himself in the proof.

But the legal presumption is that men are not guilty of fraud and dishonesty, and more strongly, that they do not commit criminal offences. This presumption exists no more, when a man is -on trial for a criminal offence, than at any other time, or on the trial of a civil case, when an attempt is made to show that a person has conn lifted a ci ime. It exists at all times, and everywhere, and is a presumption the law ever makes. Hence every man, however charged with dishonesty or fraud, or a criminal act, is always entitled to have this presumption of the law weighed in his favor, and whoever asserts the contrary, must always encounter it, and be required to overcome it by evidence, This subject was much considered by the court in the case of Briggs v. Cooper, argued at the general term in 1861, and since decided. That was an action of slander, and the defendant set r.p in justification that the words were true, and that the plaintiff was guilty of the crime he had charged him with. The question arose on the trial, by what measure of evidence such justification must be established, whether by the rule of civil or criminal cases. The county court- held, that the rule was the same as if the plaintiff was on trial for the offence alleged. On exceptions by the defendant, this court reversed the judgment, holding that the ude was that of civil issues, and that the presumption of the innocence of the plaintiff was a matter to be weighed in his favor, and to be overcame by the defendant’s evidence. It was considered, that there was no difference between a justification in slander, and any other civil ease, where the plaintiff ’s cause of action, or the defendant’s ground of dclence, was to be supported by proving that the other party had committed a crime, and that the stricter rule applied to criminal trials was ou account of the penal consequences of a conviction.

The reasons for that judgment will doubtless be reported by the judge selected to pronounce the opinion of the court, and I will not go more dully into them.

Judgment affirmed.  