Sinclair v. Jackson , 47 Me. 102 ( 1860 )

The opinion of the Court was drawn up by

Rice, J.

Trover for a quantity of bank bills. Plea, general issue.

There was evidence in the case tending to show that the defendant, with others, obtained possession of the bills by an act of larceny. In view of this testimony, the presiding Judge was requested to instruct the jury, that it was incumbent on the plaintiff to prove, beyond a reasonable doubt, that the defendant was guilty of stealing the bills, or of participating in the larceny of them, before the plaintiff would be entitled to the verdict. . This instruction was not given.

In the case of Thayer v. Boyle, 30 Maine, 475, which was trespass for wilfully and maliciously setting fire to and burning tbe plaintiff’s barn with its contents, the presiding Judge instructed the jury, that they should decide upon the balance of testimony, as in other civil cases. These instructions, the majority of the full Court held, were not so favorable to the defendant as he had a right to require.

In cases of insurance it is said, in 2d G-reenl. on Ev., 408, when the defence is, that the property was wilfully burned by the plaintiff himself, the crime must be as fully and satisfactorily proved to the jury as would warrant them in finding him guilty on an indictment for the same offence.

The same rule has been held to be the law in this State, in cases of that description. Butman v. Hobbs & Tr., 35 Maine, 227.

But in Schmidt v. New York M. F. I. Co., 1 Gray, 529, which was an action on a policy of insurance, and where one of the grounds of defence was, “ that the fire was set by the plaintiff, and was his own fraudulent and wilful act,” the Judge was requested to instruct the jury that the defendants must satisfy them beyond a reasonable doubt, that the plaintiff purposely set fire to the property insured, before they could find for the defendants. The Judge declined so to instruct, and his ruling was sustained.

In civil cases, when the rule contended for by the defendant is required, the criminal- act must be so set out in the pleadings, as to raise that distinct issue before the jury. But when no such criminal act is raised by the pleadings, the jury are authorized to decide upon the preponderance of the evidence. 1 Greenl. on Ev., 537; Schmidt v. Ins. Co., 1 Gray, 529.

No such issue was presented by the pleadings in this case. Nor was it necessary that the jury should find that a larceny had been committed to entitle the plaintiff to a verdict. Though the taking might have been felonious, it was not necessarily so. The only issue presented to the jury was one of conversion. That fact is all that will be established by the record. The fact that testimony was introduced tending to show that the defendant had committed a larceny as well as converted the property, cannot change the result.

Suppose, in a case of assumpsit on a note of hand, tried upon the general issue, evidence should be introduced tending to show that the defendant’s name upon the note was a forgery; or in a case of replevin, testimony should be introduced tending to show that the defendant obtained possession of the property under such circumstances as to constitute larceny, would the plaintiffs be required to establish their rights by the same degree of evidence as would be required to convict the defendants of forgery or larceny ? Clearly not; and for the plain reason that no such criminal charges would be in issue before the jury. So in this case.

The instructions to the jury, that they should receive the testimony of Conner, the alleged accomplice of the defendant, and give it the same effect as that of any other witness, so far as they believed him,, were correct. He was a competent witness, and, if the defendant had desired further specific instructions in relation to his standing or his testimony, he should have asked them. Exceptions overruled.

Tenney, C. J., and Appleton, Cutting, May, and Kent, JJ., concurred.