List v. Miner

• Decision Date: 23 July 1901
• Citation: 74 Conn. 50,49 A. 856
• Court: Connecticut Supreme Court
• Parties: LIST v. MINER.

49 A. 856

74 Conn. 50

LIST

v. MINER.

Supreme Court of Errors of Connecticut.

July 23, 1901.

Appeal from superior court, New London county; George W. Wheeler, Judge.

Action by Mary Ellen List against Chester Miner to recover damages for assault and battery. Prom a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

The complaint contains two counts, in each of which it is alleged, in substance, that the defendant, on two separate occasions, violently assaulted the plaintiff, and against her will debauched and carnally knew her, by reason of which she became pregnant, and was delivered of a bastard child. The defense was a general denial. The evidence for the plaintiff tended to prove the following facts: The plaintiff, a woman about 20 years old, and apparently "mentally and physically weak and below the average," went, in the first week in March, 1899, to the house of the defendant to return some books she had borrowed of his wife, and saw him at work near the door. She asked him if his wife was at home, and he said, "Yes," and requested her to go into the house. In fact his wife was not at home, and there was no one in the house or near by. He followed her into the house, bolted the door, and immediately assaulted and carnally knew her, she screaming and resisting to the extent of her ability. On the 25th or 27th of the same month, the plaintiff, while on her way across lots, to the house of a neighbor, in the afternoon, was again assaulted by the defendant, who sprang out of a place of concealment, threw her upon the ground, and against her will carnally knew her. "As a consequence thereof, the plaintiff became pregnant with child, and on January 11, 1900, was delivered of said child, which subsequently died." "The plaintiff did not tell any one of these assaults until the following September, because, as she says, there was no woman" at the house where she lived. The plaintiff also claimed to have proved that the defendant had admitted that he had had connection with her. The defendant claimed to have proved the following facts: The plaintiff's statement of these assaults was impossible, and was contradicted by her prior statements of them in and out of court. When the alleged assaults took place the defendant was elsewhere. That he had never assaulted her at all, nor had any connection with her. The ground was covered with snow 8 and 10 inches deep when the assault in the lot is said to have occurred. Both of the places where it is said he carnally knew her are near the highway, and not remote from public travel and observation. No criminal complaint was sworn out or issued against the defendant. There was never seen on the plaintiff, by any one, any evidence of injury or struggle on her part, nor did she make any disclosure or complaint of these assaults until her pregnancy became apparent, in September. It is found that no evidence was offered on the trial of the expense of the litigation, or of the costs of bringing and maintaining the suit, or of taxable costs, and no instruction or information upon these subjects was given by the court to the jury. Neither party requested the court in writing to charge the jury. The verdict was for $1,000 damages. The reasons of appeal are all based upon claimed errors in the charge, and the portions of it claimed to be erroneous are sufficiently stated in the opinion.

Hadlai A. Hull and William F. M. Rogers, for appellant.

Thomas H. Peabody and Herbert W. Rathburn, for appellee.

TORRANCE, J. (after stating the facts). The reasons of appeal in this case, taking them as they are in the defendant's brief, raise three principal questions: (1) Did the court err in its statement of the rule as to the burden of proof? (2) Did it properly instruct the jury as to the rule of damages? (3) Did it charge correctly upon the question of the assault and consent of the plaintiff thereto?

With reference to the first question, the defendant claims that the court erred in two respects: (1) In failing to call the attention of the jury to the presumption of innocence which he claims existed in his favor in this case; (2) in requiring the defendant to establish his alibi "to the satisfaction of the Jury."

The court charged the jury that it was incumbent upon the plaintiff to prove the substantial allegations of her complaint by a fair preponderance of evidence, and that this is the rule in this state, even in cases like the present, which charge acts constituting a crime as well as a civil wrong, the defendant does not deny. Mead v. Husted, 52 Conn. 53, 52 Am. Rep. 554. Of this part of the charge, as far as it goes, he does not complain, but he says the court should have gone further, and called the attention of the jury to the presumption of innocence which he says exists in favor of a defendant in cases like the present, where the acts charged constitute a crime as well as a tort.

The claim of the defendant upon this point is not made with clearness, either upon the record or in the brief. It may mean either (1) that the judge should have charged the jury, as in a criminal case, with reference to the claimed presumption of innocence; or (2) it may mean that he should have called their attention to the natural presumption or inference in favor of the defendant in cases like this arising out of the criminal character of the acts charged against him. Which of these meanings he had in view in urging his claim upon this point is not clear, and therefore both will be considered. If he meant the first, we cannot assent to his claim. The rule as to the presumption of innocence belongs to criminal law, and should be applied only in criminal cases. It properly forms part of, and belongs with, that other rule,...