Berry v. Billings , 47 Me. 328 ( 1860 )

The opinion of the Court was drawn up by

Cutting, J.

The jury are presumed to understand the definition of words in common and ordinary use, and are not in attendance for the purpose of being instructed in that particular; and this, so far as it appears from the exceptions, was all the Judge was reminded that he had not done, and which he subsequently declined to do. If the Judge had defined the word “ unfaithfulness,” he might have been called upon to define the words of his own definition, and so have proceeded ad infinitum, or until his vocabulary had become exhausted. This is hardly to be expected of the Court, and, perhaps, not expedient in all cases; for, “ omnis definitio in jure civili periculosa est, parum est enim, ut non subvertí possit.”

But it appears, from the statement of the case, that the counsel for the respondent did not seek so much for a definition, as he did to ascertain from the Court whether unfaithfulness might be inferred from gross error in judgment, or, as contended on tbe other side, there must be proof of a criminal intent. There may be different degrees of unfaithfulness, but the degree necessary to invalidate the report is not defined by the statute. It becomes, therefore, a question of fact for the jury, in their sound discretion, to settle from all the evidence bearing upon that point, as decided in Ware v. Ware, 8 Maine, 42, upon the question of sanity; and in Darling v. Dodge, 36 Maine, 370, upon the propriety of the Court expounding a term to which the law. has attached no specific meaning. Consequently the controversy between the counsel becomes immaterial; the jury might have found unfaithfulness upon either ground, differing, it might be, in degree, but still none the less unfaithfulness. Exceptions overruled.

Judgment on the verdict.

Tenney, C. J., and Rice, Appleton, and Goodenow, JJ., concurred.