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240, certiorari denied in Watson v. The trustee founds his right entirely European American Bank (1911) 223 upon a remark of Fuller, Ch. J., in U. S. 718, 56 L, ed. 628, 32 Sup. Ct. Mueller v. Nugent (1902) 184 U. S. Rep. 522, it was expressly held that a i, at page 14, 46 L. ed. 405, 411, 22 bank could not be required to pay Sup. Ct. Rep. 269, 275: 'It is as true money to the trustee in bankruptcy of of the present law as it was of that of the drawer of a check which it had 1867, that the filing of the petition is honored subsequent to the filing of the a caveat to all the world, and in effect petition in bankruptcy, but prior to an attachment and injunction (Interthe adjudication. In this case the national Bank v. Sherman (1880) 101 check was drawn subsequent to, but U. S. 403, 25 L. ed. 866), and, on adin ignorance of, the filing of an in- judication, title to the bankrupt's voluntary petition in bankruptcy property became vested in the trustee against the drawer, and was honored (88 70, 21e), with actual or construcin good faith prior to the adjudication possession, and placed in the and appointment of a receiver, and the custody of the bankruptcy court.' Mr. court, in holding that the trustee Justice Peckham said in York Mfg. Co. could not compel the bank to pay the v. Cassell (1906) 201 U. S. 344, 353, amount of the check into the bank- 50 L. ed. 782, 785, 26 Sup. Ct. Rep. 481, rupt's estate, said: "Section 70a of 484: “The remark made in Mueller v. the Bankruptcy Act of 1898 (30 Stat. Nugent (U. S.) supra, "that the filing at L. 565, chap. 541, Comp. Stat. § of the petition (in bankruptcy) is a 9654, 1 Fed. Stat. Anno. 2d ed. p. 1150) caveat to all the world, and in effect provides that the title of the bankrupt an attachment and injunction," was shall vest in the trustee, as of the date made in regard to the particular facts of adjudication, inter alia, to property

in that case.

The case itself raised which, prior to the filing of the peti- questions entirely foreign to the one tion, he could have transferred, etc. herein arising, and did not involve This latter language is intended to de- any inquiry into the title of a trustee fine the property which passes, viz., in bankruptcy as between himself and such as the bankrupt owned at the the bankrupt, under such facts as are time the petition was filed. The in- above stated. The dispute in the debtedness of the bank to Zotti was Mueller Case was whether the court property which he could have trans- in bankruptcy had power to compel, ferred. Until the adjudication the in a summary way, the surrender of title to it remained in him, and, if no money or other property of the bankreceiver had been appointed, we can rupt in the possession of the bankrupt, conceive no ground on which the or of someone for him, without resorttrustee's present claim could be ing to a suit for that purpose.' Whatrested. As the court did appoint a ever else the remark may mean, it canreceiver, it is to be presumed, in the not mean, in contradiction of the exabsence of specific directions, that he press provision of the act, that the was to hold as custodian, without title of the bankrupt shall vest in the title, for the purpose of preservation, trustee as of the time of filing the and not for the purpose of distribu- petition.. Of course, the trustee tion. The alleged bankrupt might can after adjudication, and the renever be adjudicated. The receiver did ceiver before, compel the surrender of not demand Zotti's funds until afterthe assets in the possession of the bankbank had honored Zotti's checks, as it rupt or of the alleged bankrupt or of was bound to do without any notice anyone for him. As to such persons of the filing of the petition. Payments the filing of the petition may be a after notice would, no doubt, be in caveat attachment and injunction. contempt of the order appointing the Mueller v. Nugent (U. S.) supra, was receiver, but to require it to pay that just such a case.

We think sum over again to the trustee under this language was never intended to the circumstances of this case would be applied to a bank which has honestbe in the highest degree inequitable. ly paid checks of a depositor without

31 A.L.R.-17.

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notice that any petition in bankruptcy ment of the bankruptcy proceedings has been filed against him, and who for the purpose of adjudicating rights may never be adjudicated a bankrupt and equities generally. at all. On the other hand, it would And the conclusions reached by the apply if the bank had refused to pay courts in the foregoing cases are supmoneys which had received prior to ported by dicta from other courts. the filing of the petition, and still had, Thus, in Re Howe (1916) 37 Am. or moneys which it had collusively Bankr. Rep. 601, 235 Fed. 908, it was transferred.” This reasoning is in said that it may be that, as between accord with that in the reported case the trustee in bankruptcy of the draw(CITIZENS' UNION NAT. BANK V. JOHN- er of a check drawn before bankSON, ante, 255), in which, however,

ruptcy, and the bank which, in good the court also pointed out that its con

faith, without knowledge of the bankclusion was necessary from a business

ruptcy, pays the check after the adpoint of view, since to hold otherwise

judication, the bank would be protectwould place an impossible burden on a bank by compelling it at its peril to

ed by reason of the agreement under keep advised not only daily, but mo

which deposits are customarily acmentarily, of the filing of petitions for

cepted; but this question was not in

the case. The same statement was readjudication of bankruptcy against its depositors in any competent juris

peated in Edison Electric Illuminating diction, a result which it was said it

Co. v. Tibbits (1917) 39 Am. Bankr, could not reach, even though, broadly Rep. 640, 154 C. C. A. 300, 241 Fed. speaking, the

the adjudication, when 468, wherein the facts were similar to made, relates back to the commence- those in the Howe Case. G. J. C.

INTERSTATE DRY GOODS STORES, Piff. in Err.,

V.
PHILIP WILLIAMSON.

West Virginia Supreme Court of Appeals - May 9, 1922.

(91 W. Va. 156, 112 S. E. 301.) Evidence ..conviction effect in civil action.

In a civil suit to recover the value of property stolen from the plaintiff therein, the record of the conviction of the defendant in such suit, of the larceny of such property, is not competent evidence to prove his liability to the plaintiff for the value thereof.

[See note on this question beginning on page 261.]

Headnote by Ritz, J.

ERROR to the Circuit Court for McDowell County to review a judgment in favor of defendant in an action brought to recover the value of property alleged to have been stolen by him from plaintiff's store. Affirmed.

The facts are stated in the opinion of the court.

Messrs, Strother, Sale, Curd, & by plaintiff was not and is not admisTucker for plaintiff in error.

sible. Messrs. Litz & Harman and George

7 Enc. Ev. Judgments, p. 814; 15 R.

C. L. Judgments, $ 476; 2 Black, Judgm. W. Howard, for defendant in error:

529; 1 Greenl. Ev. $ 537; 2 Taylor, Ev. The record of the judgment of the § 1693; Shires v. Boggess, 72 W. Va. criminal court introduced in evidence 109, 77 S. E. 542.

(91 W. Va. 156, 112 S. E. 301.) Ritz, J., delivered the opinion of criminal case, but before the motion the court:

to set aside the same was passed upPlaintiff brought this suit for the on, this suit was instituted in the purpose of recovering the value of circuit court of McDowell county, certain goods which it averred were for the purpose of recovering from stolen by the defendant from its the defendant the value of the goods store in the city of Welch. A trial stolen from the storeroom. The of the case in the circuit court re- case did not come on for trial until sulted in a directed verdict in favor the 5th of October, 1921, after the of the defendant and judgment judgment of conviction had been thereon, which the plaintiff seeks to entered as aforesaid, and after the reverse by this writ of error. writ of error had been granted by

In the month of May, 1921, plain the circuit court of McDowell countiff's store was broken into, and ty. On the trial of this case, the there was stolen therefrom mer- plaintiff offered in evidence the recchandise of the value of more than ord of the conviction of the defend$3,000. At the July term of the ant, in the criminal court of Mccriminal court of McDowell county, Dowell county, of burglary, proof an indictment was found against the that the defendant here was the defendant in this suit and three oth- same party as the defendant who ers, charging them with burglary. was convicted, and that the offense At the same term of the court, the of which he was convicted was defendants in that indictment elect- the robbery of the plaintiff's store, ed to be tried separately, and the and evidence of the value of the state elected to proceed to trial goods stolen from the store on that against the defendant in this suit, occasion. No evidence was offered Phil Williamson. A trial was had, showing, or tending to show, that which resulted in a verdict of guilty. the defendant committed the burUpon motion made to set aside this glary, except the judgment of converdict, an affidavit of the principal viction aforesaid. Upon this showwitness relied upon by the state for

ing, the circuit court directed the conviction was offered, to the effect jury to return a verdict for the dethat he testified falsely upon the

fendant. trial. According to his testimony The sole question presented for upon the trial, he was an accomplice our determination is, Can the record of the defendant in the commission of a judgment rendered in a crimiof the offense. Before passing upon nal trial be used as evidence in a the motion, he was brought into civil suit to prove the facts which court and cross-examined, and also were necessarily determined by it made another affidavit in which he in the criminal case? The plaintiff stated that he told the truth upon argues that, unless this judgment the trial of the case, and that the can be used for that purpose, it canaffidavit which he made was false. not secure evidence to prove its The judge of the criminal court re- cause of action, for the reason that fused to set aside the verdict on this the witness, upon whose testimony ground, and rendered judgment the conviction was had in the crimithereon, sentencing Williamson to nal case, has placed himself in such be confined in the penitentiary. a position, by the contradictory affiWilliamson obtained from the cir- davits subsequently made, as to rencuit court of McDowell county a der him entirely unworthy of belief; writ of error to this judgment, and and further, it is stipulated in the the case was pending in that court, record that, since the trial of this undetermined upon said writ of er- case in the circuit court, that court ror, at the time of the trial of this has reversed the judgment of concase.

viction against the defendant and Immediately after the jury re- remanded the case to the criminal, turned its verdict of guilty in the court of McDowell county, where

the indictment was nolled by the plished are essentially different. In prosecuting attorney, so that, even a criminal case, the defendant canif we should hold that the judgment not be made to testify, and no inin the criminal case was proper evi- ference can be drawn from the fact dence to prove that the defendant that he does not testify, while in a committed the larceny of plaintiff's civil suit his adversary may use him goods at the time of the trial of this as a witness if he desires. He may, case, and should have been so treat- however, in the criminal case, tesed, and reverse the case and remand tify in his own behalf, and to allow it for a new trial, plaintiff would the record of that judgment to be not be benefited, because the judg- used as evidence in the civil suit ment does not now exist, and could would be giving effect to the defendnot be offered by him upon a retrial, ant's testimony given upon the so that the only way in which he criminal trial. In a criminal case, can be benefited is for this court to the guilt of the accused must be hold that the case was in effect sub- proven beyond a reasonable doubt, mitted to the court in lieu of a jury while this is not the rule in civil upon the undisputed facts, reverse trials. The criminal proceeding is the findings of the lower court there- between the state and the accused on, find here in favor of the plain- party, and seeks vindication of a tiff, and render judgment upon that public right, while in the civil suit finding.

the purpose sought is vindication of Can the judgment in the criminal purely private rights and intercase be used as evidence in the civil ests. suit, to prove that the defendant For all of these reasons, as well as stole the goods to recover the value others which might be enumerated, of which this suit is brought? If the authorities uniformly hold that this judgment had been rendered the judgment in a criminal case is upon a plea of guilty, the record of not proper evidence in a civil suit, that plea could be introduced not as to prove the facts on which it is conclusive evidence against the de- based. Freeman, Judgm. § 319; fendant, but as an admission upon Black, Judgm. § 529; 15 R. C. L., his part. It would not differ from

title “Judgments," $8 476, 477; an extrajudicial admission of liabil

Micks v. Mason, 11 L.R.A.(N.S.) ity made by him, except that more

653 and note (145 Mich. 212, 108 N. importance might be attached to it

W. 707, 9 Ann. Cas. 291). Of because of the solemnity attaching to the surroundings under which it

course, in a civil suit, where it bewas made, and the deliberation at

comes material to prove the existtending the entering of such a plea. nal case, the record of it is ordina

ence of such judgment in the crimi. But in this case the defendant did

rily conclusive evidence of the fact. not plead guilty. He pleaded not

In a suit for malicious prosecution, guilty and insisted that he was not

the plaintiff, in order to recover, is guilty during the progress of the trial. It is uniformly held that a

under the necessity of proving that judgment of con

the criminal prosecution, the basis Evidence-conviction-effect in viction or acquittal

of the civil suit, has been terminatcivil action. in a criminal case is

ed favorably to him, and, for the not proper evidence in a civil case, purpose of proving this fact, the recto establish the facts which were ord of the judgment in the criminal necessary to be established in order case is, of course, conclusive. So, in to secure such conviction or ac- suits to recover penalties, where the quittal. The parties to the criminal same are conditioned upon the conprosecution are different. The rules viction of the defendant, the record of evidence are different in the two of his conviction of the offense, out classes of cases, and the purposes of which the penalty grows, is conand objects sought to be accom- clusive of that question. There are

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(91 W. Va. 156, 112 8. E. 301.) other instances, as will appear from missible as proof of the facts upon the authorities above cited, in which which it is based. the judgment in the criminal case is There being no other evidence competent evidence in a civil suit, offered in this case connecting the but this is limited to those instances defendant with the robbery, it folin which it is necessary to prove the lows that the court did not err in existence of such judgment as a ba- rendering the judgment complained sis for the recovery. It is not ad- of, and the same is affirmed.

ANNOTATION.

Conviction or acquittal as evidence of facts on which it was based, in a civil

action.

I. Scope, 261.
II. General rule:

a. Rule stated, 262.
b. Rationale; dissimilarity of ob-

ject, issues, proof, parties, etc.,

264.
c. Application:

1. Convictions, 269.
2. Acquittals, 270.

II.-continued.

d. When conviction secured on evi.

dence of party seeking to use

it, 273. III. Minority rule, 275. IV. Effect of introduction by convicted

person, 277. V. Conviction based on confession of

guilt, 278.

1. Scope.

based, is a relevant fact in the civil The present annotation is confined action, either as the foundation of to a treatment of cases between pri- that action, or as a defense, as in case vate parties which are purely civil in of an action for a reward conditioned form and character, as distinguished on conviction, actions for malicious from cases which are penal or quasi prosecution in which an acquittal is a public in form and character, i. e., in part of the plaintiff's cause of action, which the public as such are con- actions on policies of life insurance cerned, such, for instance, as suits defended on the ground that insured brought for the benefit of the public to was executed as a result of a convicrecover penalties, to impose a punish- tion, etc. The distinction is brought ment, or declare a forfeiture. Illus- out in Burt v. Union Cent. L. Ins. Co. trative of the classes of cases excluded (1900) 59 L.R.A. 393, 44 C. C. A. 548, are suits upon penal bonds, suits to 105 Fed. 419, affirmed in (1902) 187 declare a forfeiture of property, suits

U. S. 362, 47 L. ed. 216, 23 Sup. Ct. to remove public officials from office Rep. 139, an action on an insurance for misconduct, proceedings for the policy upon the life of one who had disbarment of attorneys or for the re

been convicted of the crime of murder vocation of licenses to practise pro- and executed, where the circuit court fessions or trades, etc.

of appeals, in sustaining a demurrer, Also excluded are the cases which

while basing its decision that no redeal merely with the question whether covery could be had on the ground of or not the judgment in a criminal public policy, gave conclusive effect prosecution bars a subsequent civil to the judgment rendered against the action based upon the same offense,

insured on the criminal trial, although as distinguished from the question the complaint alleged that the insured whether or not a conviction or ac- was in fact innocent of the crime of quittal constitutes evidence of the which he was convicted. And on aptruth of the facts on which it was peal the United States Supreme Court, based, in the civil action.

in affirming the judgment of the lower And the annotation is not concerned court, and in answering the contention with cases where the fact of the con- that the adjudication in the criminal viction or acquittal itself, as distin- prosecution as to the guilt of the inguished on the facts on which it was sured was not conclusive, since such

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