Didsbury v. Van Tassell

The principal ground for reversal urged by appellant is that it was not affirmatively proven that the prisoner left the jail limits without the assent of the sheriff. A motion for nonsuit was made on that ground and denied. The testimony on that point was not entirely satisfactory, and we would be better satisfied if it had been stronger; but it can hardly be said that there was no testimony on the subject. It was testified that the sheriff and under-sheriff supposed the prisoner was constantly within the jail limits. And in the details of the evasion as shown by the testimony the jury may have some grounds to satisfy them that the sheriff was not a consenting party.

*31There can be no presumption that a public officer is guilty of a breach of duty; and, where the evasion of the prisoner was very certain to subject the sheriff to a lawsuit, as to which it is shown the sheriff had in this case full notice, the jury may have thought the sheriff’s assent so improbable that slight proof convinced them it did not exist.

It is also urged that the verdict is opposed to the weight of evidence. IVe do not so regard it. Several witnesses testified that the prisoner came upon the late train, which arrived in town after the summons was served. More witnesses testified that he came upon an earlier train. The prisoner, and at least one other witness, testified that he arrived upon the early train, and that, expecting to meet some one to arrive by the late train, he went there and mingled with the outcoming passengers. This does something towards showing the plaintiff’s witnesses may have been led into error, and testified honestly and mistakenly that the prisoner arrived by the late train. Judgment affirmed,' with costs.