The action herein is one for assault and battery. There was a conflict of evidence upon the trial as to who was the aggressor, and hence the rulings and charge of the court as to where the burden of proof rested were of importance.
Pursuant to the practice which has been adopted in the district where this case was tried, the defendant’s counsel, before the court commenced its charge to the jury, handed to the trial justice a number of Avritten requests to charge, seventeen in all.
And the following appears in the printed case in relation thereto : The following requests to charge were submitted in writing by defendant’s counsel, but Avere not read to the jury. They were marked by the court, and the requests and the action of the court, as indicated on the margin, appear as follows, and the court refused to charge otherwise, giving defendant an exception.”
Then follow the requests, with the action of the court thereon. For a more complete understanding of the question, five of such requests are here set forth, Avith the action of the court thereon, as appears from the printed case:
First. “ That the defendant is presumed innocent.” “ Refused.”
Second. “ That the affirmative is upon the plaintiff.” “ Charged.”
Third. “That the plaintiff must prove by a preponderance of evidence that the defendant assaulted him without justification.” '“ Charged as requested.”
Fourth. “That the burden of proof rests upon the plaintiff throughout the entire case.” “ Refused.”
Although some of these requests are marked as charged, as matter of fact, not a word was said to the jury in regard to them, and the jury were not advised or directed upon any of the matters set forth in any of the defendant’s requests to charge, unless such advice or direction was contained in the principal charge of the court. It will be observed in the statement contained in the printed case, preceding the requests to charge, that it is stated that the requests were submitted in writing, “ but were not read to the jury.” And, again, that “ they were marked by the court, * * * and the court refused to charge otherwise.” That is, as I understand it, the court refused to do.other than mark the requests; that is to say, while it marked a request as charged, it did not in fact say anything to the jury about it.
Both the counsel for the appellant and for the respondent concur in this, that nothing was said to the jury except what was said in the main charge.
Some of the requests made were upon matters that the defendant had a legal right to have the jury advised of, and merely marking them as charged, without in fact saying anything to the jury in regard to them, was reversible error, unless the court had sufficiently advised the jury in regard thereto in its main charge.
The first request, “ that the defendant is presumed innocent,” marked as “ refused,” the defendant was entitled to have charged; the court did not at any time, either in substance or effect, charge the jury upon that subject.
The presumption of the innocence of a defendant prevails in a civil action where a judgment against him will establish his guilt of a crime. (Wilcox v. Wilcox, 46 Hun, 32, 40 ; N. Y. & B. F. Co. v. Moore, 18 Abb. N. C. [Ct. of App.] 106-119.)
The second request, “ that the affirmative is upon the plaintiff,” marked as “ charged,” is a correct legal proposition, and one that the defendant was entitled to have charged. While it is marked as “ charged,” it was not, as I have heretofore stated, submitted to the jury; neither was anything like it, either in substance or effect, stated to the jury by the court in its principal charge.
The defendant excepted to the refusal of the court to charge, except by marking on the paper its refusal or assent. I think the exception well taken and sufficient to raise the questions involved.
Under the circumstances the court will not be astute to discover technical defects in the manner of taking the exception, it clearly appearing that the jury were not in fact charged upon the subjects that the defendant had, upon request, a clear legal right to have them advised of, and having endeavored, at least, as appears from the record, to excejit to such refusal. For the errors stated the judgment and order should be reversed and a new trial granted, costs to abide the event.
All concurred, except Landon, J., dissenting.