#### Henry Ruth v. The City of Abingdon.

Evidence—degree of, in action to recover penalty. In an action to recover a penalty or fine for the violation of a town ordinance, it is error to instruct the jury that a preponderance of evidence, only, is required to convict.

Appeal from the Circuit Court of Knox county; the Hon. Aethue A. Smith, Judge, presiding.

Messrs. Williams, McKenzie & Calkins, for the appellant.

Per Curiam:

This was a prosecution originally commenced before a justice of the peace, against appellant, Henry Ruth, to recover a penalty for the alleged violation of an ordinance of the town of Abingdon, against selling alcoholic or intoxicating drinks. A conviction was had before the justice of the peace, and a fine of $200 imposed. On appeal to the circuit court, a trial was had, resulting in a verdict of guilty and the assessment of a fine of $50; from the j ud gm ent_ where on this appeal is taken.

The court below gave to the jury, on behalf of the prosecution, the following instruction:

> “ The jury are further instructed, that it is not necessary, in this ease, to prove the defendant guilty beyond a reasonable doubt. It is sufficient to convict, if a preponderance of evidence is in favor of the plaintiff.”

We feel compelled to reverse this judgment for the giving of this instruction, under the authority of the case of Toledo, Peoria and Warsaw Railway Co. v. Foster, 48 Ill. 480. That was a qwi tam action against the railroad company, to recover the penalty of $50 imposed upon railways for a failure to sound a whistle or ring a bell for eighty rods before arriving at a crossing.

*419The court below there instructed the jury that a prepOnder anee of evidence, only, was required, and that it was - not necessary a jury should be satisfied of the guilt of the defend ant beyond a reasonable doubt.

While approving the last branch of the instruction, it was held erroneous to instruct that a preponderance of evidence, only, was required in such a case, and for the error in that instruction, the judgment was reversed.

We can not distinguish the present from that case, and the judgment must be reversed and the cause remanded.

Judgment reversed.