Bradish v. Bliss

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. [328] 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, [329] 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.