Baxter v. McDonald , 5 Daly 508 ( 1875 )

Larremore, J.

The judgment rendered in this case is not sustained by competent or reliable evidence. The only witness who testified to the conversion of plaintiff’s money was his own son, a child of nine years, who contradicts himself on so many material points as to render his testimony unworthy of credit. He was also privy to and aided in the abstraction of the money in the first instance. The testimony of the defendant’s witnesses was so positive and consistent, that but one conclusion could be derived therefrom.

The judgment in this case is clearly against the weight of evidence, and should be "reversed with costs.

Robinson, J.

Although it must be a very extreme case in which this court, on appeal, would interfere with ‘the verdict of a jury upon questions of fact properly submitted, this case is one in which there should be a reversal of the verdict, because it is not sustained by any positive or unimpeached testimony. Plaintiff’s case rests wholly upon the testimony of Peter Baxter, his infant son, of the age of nine years, who, it is claimed, with his younger brother, stole the father’s money, which, it is alleged, came into the defendants’ hands under claim that it had been stolen, by the boys, from them. The amount plaintiff claims he lost, was but $75. The amount recovered by defendants from these boys, under claim that it was- part of the sum of $100 stolen by them from under a hearth rug in defendants’ premises, where temporarily deposited by Mrs. McDonald, for safe keeping, was $80. The boy Peter was, confessedly, particeps crirmnis in the theft of the money in question. He contradicted himself, first swearing he never was in defendants’ front room, from which the money was stolen, until the occasion when the female.defendant (Mrs. McDonald) brought him in there after the alleged theft, and never knew his younger brother to go in there,- and yet he subsequently testified substantially to being present there with his brother when they stole defendants'1 money. If the boy had not thus confessed to the stealing of the money from defendants, the case was one in which there was so great preponderance of testimony in defendants’ favor, that, considering the other irreconcilable fact that the amount recovered from the boy was $80, -when plaintiff' only lost $75, it would have presented such overwhelming evidence of the injustice of the verdict that it ought, for that reason, to have been set aside and the judgment reversed.

The judgment should be reversed.

Daly, Ch. J., concurred.

Judgment reversed.