#### FRANCIS M. NEAL v. MICHAEL FESPERMAN.

The party affirming a.fact must prove it to the satisfaction of the jury, because the *onus probandi*is upon him : if he does so prove it to the satisfaction of the jury, it is well settled, that in all cases, he is entitled to a verdict in his favor on the issue.

It is not error in a judge to refuse to instruct the jury in a-civil case, that they must be satisfied “beyond a *rational doubt.”*

*447Action of Slander, tried before his Honor Judge Settle, at the Spring Term, 1854, of Stanly Superior Court.

Pleas, General Issue, and Statute of Limitations.

Exception to the instructions given by the Court to the jury, upon the Statute of Limitations.

Upon this part, his Honor charged the jury, that the rule in relation to evidence, which existed in capital, and existed in all criin n il cases, did not apply to such cases, to wit, that the jury must be satisfied, beyond *& rational doubt;*that in capital cases, the jury were not at liberty to find against a defendant, if, allowing the evidence to be true, there was any hypothesis, consistent with the defendant’s innocence, or where there was any, the slightest, rational doubt of the truth of the evidence. But in civil cases, the jury might weigh the evidence and give their verdict for the side on which the evidence preponderated, looking to all the facts of the case; but they must be satisfied, befor* they could find for the plaintiff, that the words were spoken within six months, before the bringing of the action.

The jury found a verdict for the plaintiff, and the defendant moved for a rule for a *venire de novo.*Rule discharged and Judgment. Appeal to this Court.

Strange, and *J. H. Bryan,*for plaintiffs.

No counsel appeared for defendant.

Pearson, J.

The defendant’s counsel moved the Court to charge that “before the jury could find for the plaintiff, they must be satisfied, beyond a rational doubt, that the words were spoken within six mouths before the bringing of the action.” His Honor refused so to charge, but told the jury chat before they could find for the plaintiff, they must be *satisfied*that the words were spoken within six months before the bringing of the action. For this the defendant excepts. There is no error.

The party affirming a fact must prove it to tue satisfaction of the jury, because the *onus*j:robandi” is upon him. If he does prove it to the satisfaction of the jury, it is settled, that, in civil *448actions, he is entitled to a verdict in his favor, upon the issue. We are not called on here to say, how far a different rule has been adopted in capital cases. Where the evidence is circum-st ntial, it is admitted to be proper “ *in favorem vitae,”*for the Court to instruct the jury, that if there be any hypothesis consistent with the prisoner’s innocence, they should find him “not guilty;” that is, if the circumstances proven may all be true, and still the prisoner be not guilty, they should acquit.

How far “ *in favorem vitae*” this mater is to be extended, so as to require the Court in a capital case, when the evidence of guilt is direct, to charge the jury that they must bo satisfied, beyond a rational doubt: that is, that they should not have a rational doubt of the truth of the evidence, or credibility of the • witnesses, we are not now to say. Suffice it, in civil cases, if ■ the jury are *satisfied,*from the evidence, that-an allegation is true in fact, it is their duty so to find, and they, should bo so instructed.

Judgment affirmed.