I concur in the foregoing opinion of the chief justice. Section 1835 of the Code of Civil Procedure, like section 1826 of the same code, is dealing exclusively with evidence in criminal cases. The difficulty is entirely removed if to the sentence in section 1835, "Such evidence alone will justify a verdict," there be added "of conviction." That these sections have applicability solely to criminal cases is made manifest not only by the history and development of the law governing criminal trials, but from two additional facts, each equally convincing. The one fact is that if those sections were made to apply to trials by jury in civil cases, it is within bounds to say that ninety-nine such cases out of a hundred would necessarily result in perpetual mistrials. The evidence in civil cases upon either side is most rarely of so convincing a character as to produce "moral certainty or conviction," and if it be only such evidence in a civil case as "will justify a verdict," then it must result that no verdict can be rendered. As pointed out by the chief justice, this distinction is itself noted by our law in section 2061 of the same code. In subdivision 5 of that section criminal cases and civil cases are put in immediate juxtaposition, and courts are advised to instruct their juries that in civil cases their "decision must be made according to the preponderance of evidence," while "in criminal cases guilt must be established beyond reasonable doubt." The second fact, equally conclusive, is shown by the history of these two sections, derived from the notes of the codifiers and commentators. Every word of those notes establishes that the codifiers are dealing with the sufficiency of evidence in criminal cases. Thus, in the note to section 1826 it is said, "The principal difference to be remarked between civil and criminal cases with reference to the modes of proof by direct or circumstantial evidence is, that in the former where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment than in the latter case which affects life and liberty." While in the note to section 1835 it is said: "To acquit upon light, trivial, and fanciful suppositions and remote conjectures, is a virtual violation of the juror's oath, and an offense of great magnitude against the interests of society, directly tending to the disregard of the obligations of a judicial oath, the hindrance and disparagement *Page 658 of justice, and the encouragement of malefactors. On the other hand, a juror ought not to condemn unless the evidence excludes from his mind all reasonable doubt as to the guilt of the accused, and, as has been well observed, unless he is so convinced by the evidence that he would venture to act upon that conviction in matters of the highest concern and importance to his own interests." In their note to section 1835 the codifiers cite Starkie on Evidence, and Starkie's discussion therefore may well be quoted. This is what that learned author says:
"Even the most direct evidence can produce nothing more than such a high degree of probability as amounts to moral certainty. From the highest degree it may decline, by an infinite number of gradations, until it produces in the mind nothing more than a mere preponderance of assent in favor of the particular fact.
"The distinction between full proof and mere preponderance of evidence is in its application very important. In all criminal cases whatsoever, it is essential to a verdict of condemnation, that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact to the exclusion of all reasonable doubt.
"But in many cases of a civil nature, where the right is dubious, and the claims of the contesting parties are supported by evidence nearly equipoised, a mere preponderance of evidence on either side may be sufficient to turn the scale."