52 Conn. 53 | Conn. | 1884
The defendant’s counsel having abandoned
1. It is said the court erred in excluding the inquiry made of the plaintiff on cross-examination whether he had not said, since the suit was brought, that the church had made a mistake in giving the defendant a letter of dismissal and recommendation, as it would have a bad effect on the plaintiff’s case.
It is conceded that the inquiry was irrelevant, except to show the plaintiff’s bias and hostility to the defendant. The fact of such bias was admissible, but not necessarily the manner of showing it or the particular instance in which it appeared. If for instance the plaintiff as a witness had denied his unfriendty feeling, or had pretended it was very slight, then in further cross-examination the special instance might be called out. But here the record shows the fact to have been most fully confessed: “ The plaintiff said he was not on friendly terms with the defendant, and had not been since the burning of his first barn in 1875; that he could not love a man who had done him such great wrong as the defendant had; and that he governed his conduct towards the defendant according to the precept, ‘ Oast not your pearls before swine.’ ”
The defendant suffered no harm by excluding the special instance, and on the other hand an illegitimate use of the fact might have been made by the jury had it been admitted.
2. The defendant asked the court to charge the jury, “that in this case to create a preponderance of evidence, the evidence must be sufficient to overcome the opposing presumption as well as the opposing evidence. To overcome a strong presumption requires more evidence than to-overcome a weak one. To fasten upon the defendant a very heinous or repulsive act, requires stronger proof than to fasten upon him an indifferent act or one in accordance with his known inclinations. To fasten upon the defendant the act of setting fire to the buildings of the plaintiff, should
Upon this request the court charged the jury as follows: This is a civil action, and is to be decided like any other civil action; and although the acts for which damages are sought might have been prosecuted as crimes, we are dealing with them here only in their civil aspects. In a criminal prosecution the law requires full certainty—that is, proof beyond a reasonable doubt, before a verdict of guilty can be given. In civil actions this degree of certainty is not required. In these cases the law requires juries to take into account, and sometimes to be governed by, probabilities ; and among these probabilities are such as attach to human action. There is an antecedent probability that a man will not commit a crime. In a lesser degree, perhaps, there is a probability that a man will not commit any heinous or repulsive act, or one which would subject him to heavy damages. Unfortunately, however, it is true that men do commit crimes, and they do commit acts which subject them to damages. But the probability that they will not do so is one to which the defendant is entitled ; or, as stated by counsel, the improbability that a man will do such acts as are charged against the defendant in this complaint and which expose him to heavy loss. This is a presumption to which the defendant is entitled, which you ought to consider, and which ought to be' overcome in your minds before you render a verdict against him.”
Complaint is made of this charge that it did not go far enough as to the nature and force of the presumption of innocence. If we compare the charge as given with the defendant’s request, we find they are substantially alike, differing only in the fact that the charge alludes to the reasons upon which the presumption is founded, which the request omits. But it is said that the jury must have understood from the instructions given that the presumption was one which.arose solely out of a man’s fear of being subjected
But in further answer to the objection we ought to say that the charge as given was in advance of the doctrine heretofore enunciated by this court. In other jurisdictions some very respectable authorities have gone in actions of this kind even beyond the rule adopted by the charge; but we think the charge is in accord with the greater number of American authorities. But hitherto in this state we have held to the rule that in civil issues the result should follow the mere preponderance of evidence, even though the result imputes the charge of a felony. To this effect is the decision in Munson v. Atwood, 30 Conn., 102. It ought however to be regarded as still an open question in this state whether, as one factor in determining the preponderance of the evidence, the triers may consider the presumption in question. The present case does not require a decision upon this point. It is enough to say that this court will not go beyond the position taken by the court below.
The other part of the charge to which exception is taken is as follows:—“If upon the whole testimony, and after giving the defendant the benefit of the presumption in his favor to which I have before alluded, you believe, fairly and honestly, that it is more likely to be true that the defendant did set fire to these barns of the plaintiff than that he did not, you ought to render a verdict for the^plaintiff; and on the other hand, if you do not so believe, your verdict should be for the defendant.”
But it is claimed that the law cannot sanction the use of the substituted phrase or regard it as equivalent. The judge, instead of requesting the jury to weigh the evidence and determine the result by the preponderance, asked them to consider it all, and then gave them the true and only weighing scales whereby preponderance could be determined, namely, the effect on the honest mind of each juror. If the effect was to convince the jury that the controlling facts for the plaintiff were more likely to be true, they ought to give a verdict for him; otherwise for the defendant.
We think the test furnished was the true and only means by which the jury could ascertain whether there was any preponderance. The logical process in all juridical reasoning is only imperfect induction or analogy, and there is no case depending -on moral.evidence where we can reach a result which excludes all possibility of the contrary being true. In Wharton on Evidence, § 8, it is said that “ juridical evidence is evidence of mutable phenomena through human agency addressed to a human tribunal; and both as to the witnesses and the things to which they testify credit is given only on probable grounds.”
But the defendant appeals to the authorities, and cites two cases that sustain his objections to the charge: Haskins v. Haskins, 9 Gray, 890, and Parker v. Johnson, 25 Geo., 576. The cases it must be conceded are in point, and from the high character and ability of the courts rendering the decisions, we hesitated at first whether we ought not to follow them.
In the former case a new trial was granted because the court below used the phrase “balance of probabilities,” as equivalent to preponderance of proof. Bigelow, J., in /giving the opinion of the court, said:—“‘Balance of probabilities’ is at best a vague and indefinite phrase, which would rather lead the jury to infer that they might form their verdict on a guess at the truth, gathered'from the evidence, than on a real solid conviction of it, founded on a careful scrutiny and examination of the proof.” In the latter case the court held that a charge to the jury that “ whichever they believed the weight of probability to be they were authorized to find,” was calculated to mislead the jury, and was incorrect as matter of law, because the evidence “ should so preponderate in favor of the party for whom the verdict is rendered as to satisfy the jury that he is entitled to it.”
The other objection, as to the danger of misleading the jury, so strongly stated by the Massachusetts court, does not strike us as well founded, especially under the circumstances of this case, for the remarks of the judge in con
We have confined our attention so far to the reasons given for the decisions in Massachusetts and Georgia. The cases rest entirely on the reasons given; no authorities are cited in their support. We are able to cite in favor of the positions taken in the present case the opinions of some law writers and jurists of at least equal distinction and ability.
In 1 Best on Evidence (1st Am. from the 6th Lond. ed.), § 95, it is said: “ But there is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former, a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision.” It seems to us not a little singular that the phrase used in this masterly treatise of Mr. Best should be almost verbally identical, and entirely so in meaning, with that used in the two cases cited, and yet be so strongly condemned, especially by the Massachusetts court, as most vague, indefinite and misleading, without however referring at all to the fact that it had ever been used by so distinguished an author.
The proposition of Mr. Best, though different in words • from the one we are considering, is, we submit, identical in meaning and effect, and therefore it furnishes a strong support for the position we have taken.
In Cooper v. Slade, 6 House of Lords Cases, 772, Justice Willes says: “I may be excused for referring to an
There is no error in the judgment complained of.
In this opinion the other judges concurred; except Granger, J., who dissented.