240, certiorari denied in Watson v. European American Bank (1911) 223 U. S. 718, 56 L. ed. 628, 32 Sup. Ct. Rep. 522, it was expressly held that a bank could not be required to pay money to the trustee in bankruptcy of the drawer of a check which it had honored subsequent to the filing of the petition in bankruptcy, but prior to the adjudication. In this case the check was drawn subsequent to, but in ignorance of, the filing of an involuntary petition in bankruptcy against the drawer, and was honored in good faith prior to the adjudication and appointment of a receiver, and the court, in holding that the trustee could not compel the bank to pay the amount of the check into the bankrupt's estate, said: "Section 70a of the Bankruptcy Act of 1898 (30 Stat. at L. 565, chap. 541, Comp. Stat. § 9654, 1 Fed. Stat. Anno. 2d ed. p. 1150) provides that the title of the bankrupt shall vest in the trustee, as of the date of adjudication, inter alia, to property which, prior to the filing of the petition, he could have transferred, etc. This latter language is intended to define the property which passes, viz., such as the bankrupt owned at the time the petition was filed. The indebtedness of the bank to Zotti was property which he could have transferred. Until the adjudication the title to it remained in him, and, if no receiver had been appointed, we can conceive no ground on which the trustee's present claim could be rested. As the court did appoint a receiver, it is to be presumed, in the absence of specific directions, that he was to hold as custodian, without title, for the purpose of preservation, and not for the purpose of distribution. The alleged bankrupt might never be adjudicated. The receiver did not demand Zotti's funds until after the bank had honored Zotti's checks, as it was bound to do without any notice of the filing of the petition. Payments after notice would, no doubt, be in contempt of the order appointing the receiver, but to require it to pay that sum over again to the trustee under the circumstances of this case would be in the highest degree inequitable. 31 A.L.R.-17. The trustee founds his right entirely upon a remark of Fuller, Ch. J., in Mueller v. Nugent (1902) 184 U. S. 1, at page 14, 46 L. ed. 405, 411, 22 Sup. Ct. Rep. 269, 275: 'It is as true of the present law as it was of that of 1867, that the filing of the petition is a caveat to all the world, and in effect an attachment and injunction (International Bank v. Sherman (1880) 101 U. S. 403, 25 L. ed. 866), and, on adjudication, title to the bankrupt's property became vested in the trustee (§§ 70, 21e), with actual or constructive possession, and placed in the custody of the bankruptcy court.' Mr. Justice Peckham said in York Mfg. Co. v. Cassell (1906) 201 U. S. 344, 353, 50 L. ed. 782, 785, 26 Sup. Ct. Rep. 481, 484: 'The remark made in Mueller v. Nugent (U. S.) supra, "that the filing of the petition (in bankruptcy) is a caveat to all the world, and in effect an attachment and injunction," was made in regard to the particular facts in that case. The case itself raised questions entirely foreign to the one herein arising, and did not involve any inquiry into the title of a trustee in bankruptcy as between himself and the bankrupt, under such facts as are above stated. The dispute in the Mueller Case was whether the court in bankruptcy had power to compel, in a summary way, the surrender of money or other property of the bankrupt in the possession of the bankrupt, or of someone for him, without resorting to a suit for that purpose.' Whatever else the remark may mean, it cannot mean, in contradiction of the express provision of the act, that the title of the bankrupt shall vest in the trustee as of the time of filing the petition. . . . Of course, the trustee can after adjudication, and the receiver before, compel the surrender of assets in the possession of the bankrupt or of the alleged bankrupt or of anyone for him. As to such persons the filing of the petition may be a caveat attachment and injunction., Mueller v. Nugent (U. S.) supra, was just such a case. We think this language was never intended to be applied to a bank which has honestly paid checks of a depositor without notice that any petition in bankruptcy has been filed against him, and who may never be adjudicated a bankrupt at all. On the other hand, it would apply if the bank had refused to pay moneys which had received prior to the filing of the petition, and still had, or moneys which it had collusively transferred." This reasoning is in accord with that in the reported case (CITIZENS' UNION NAT. BANK V. JOHNSON, ante, 255), in which, however, the court also pointed out that its conclusion was necessary from a business point of view, since to hold otherwise would place an impossible burden on a bank by compelling it at its peril to keep advised not only daily, but momentarily, of the filing of petitions for adjudication of bankruptcy against its depositors in any competent jurisdiction, a result which it was said it could not reach, even though, broadly speaking, the the adjudication, when made, relates back to the commence ment of the bankruptcy proceedings for the purpose of adjudicating rights and equities generally. And the conclusions reached by the courts in the foregoing cases are supported by dicta from other courts. Thus, in Re Howe (1916) 37 Am. Bankr. Rep. 601, 235 Fed. 908, it was said that it may be that, as between the trustee in bankruptcy of the drawer of a check drawn before bankruptcy, and the bank which, in good faith, without knowledge of the bankruptcy, pays the check after the adjudication, the bank would be protected by reason of the agreement under which deposits are customarily accepted; but this question was not in the case. The same statement was repeated in Edison Electric Illuminating Co. v. Tibbits (1917) 39 Am. Bankr. Rep. 640, 154 C. C. A. 300, 241 Fed. 468, wherein the facts were similar to those in the Howe Case. G. J. C. INTERSTATE DRY GOODS STORES, Plff. in Err., V. PHILIP WILLIAMSON. West Virginia Supreme Court of Appeals — May 9, 1922, Evidence.conviction (91 W. Va. 156, 112 S. E. 301.) 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, & Tucker for plaintiff in error. Messrs. Litz & Harman and George W. Howard, for defendant in error: The record of the judgment of the criminal court introduced in evidence by plaintiff was not and is not admissible. 7 Enc. Ev. Judgments, p. 814; 15 R. C. L. Judgments, § 476; 2 Black, Judgm. 529; 1 Greenl. Ev. § 537; 2 Taylor, Ev. § 1693; Shires v. Boggess, 72 W. Va. 109, 77 S. E. 542. (91 W. Va. 156, 112 S. E. 301.) Ritz, J., delivered the opinion of the court: Plaintiff brought this suit for the purpose of recovering the value of certain goods which it averred were stolen by the defendant from its store in the city of Welch. A trial of the case in the circuit court resulted in a directed verdict in favor of the defendant and judgment thereon, which the plaintiff seeks to reverse by this writ of error. In the month of May, 1921, plaintiff's store was broken into, and there was stolen therefrom merchandise of the value of more than $3,000. At the July term of the criminal court of McDowell county, an indictment was found against the defendant in this suit and three others, charging them with burglary. At the same term of the court, the defendants in that indictment elected to be tried separately, and the state elected to proceed to trial against the defendant in this suit, Phil Williamson. A trial was had, A trial was had, which resulted in a verdict of guilty. Upon motion made to set aside this verdict, an affidavit of the principal witness relied upon by the state for conviction was offered, to the effect that he testified falsely upon the trial. According to his testimony upon the trial, he was an accomplice of the defendant in the commission of the offense. Before passing upon the motion, he was brought into court and cross-examined, and also made another affidavit in which he stated that he told the truth upon the trial of the case, and that the affidavit which he made was false. The judge of the criminal court refused to set aside the verdict on this ground, and rendered judgment thereon, sentencing Williamson to be confined in the penitentiary. Williamson obtained from the circuit court of McDowell county a writ of error to this judgment, and the case was pending in that court, undetermined upon said writ of error, at the time of the trial of this case. Immediately after the jury returned its verdict of guilty in the criminal case, but before the motion to set aside the same was passed upon, this suit was instituted in the circuit court of McDowell county, for the purpose of recovering from the defendant the value of the goods stolen from the storeroom. The case did not come on for trial until the 5th of October, 1921, after the judgment of conviction had been entered as aforesaid, and after the writ of error had been granted by the circuit court of McDowell county. On the trial of this case, the plaintiff offered in evidence the record of the conviction of the defendant, in the criminal court of McDowell county, of burglary, proof that the defendant here was the same party as the defendant who was convicted, and that the offense of which he was convicted was the robbery of the plaintiff's store, and evidence of the value of the goods stolen from the store on that occasion. No evidence was offered showing, or tending to show, that the defendant committed the burglary, except the judgment of conviction aforesaid. Upon this showing, the circuit court directed the jury to return a verdict for the defendant. The sole question presented for our determination is, Can the record of a judgment rendered in a criminal trial be used as evidence in a civil suit to prove the facts which were necessarily determined by it in the criminal case? The plaintiff argues that, unless this judgment can be used for that purpose, it cannot secure evidence to prove its cause of action, for the reason that the witness, upon whose testimony the conviction was had in the criminal case, has placed himself in such a position, by the contradictory affidavits subsequently made, as to render him entirely unworthy of belief; and further, it is stipulated in the record that, since the trial of this case in the circuit court, that court has reversed the judgment of conviction against the defendant and remanded the case to the criminal, court of McDowell county, where the indictment was nolled by the prosecuting attorney, so that, even if we should hold that the judgment in the criminal case was proper evidence to prove that the defendant committed the larceny of plaintiff's goods at the time of the trial of this case, and should have been so treated, and reverse the case and remand it for a new trial, plaintiff would not be benefited, because the judgment does not now exist, and could not be offered by him upon a retrial, so that the only way in which he can be benefited is for this court to hold that the case was in effect submitted to the court in lieu of a jury upon the undisputed facts, reverse the findings of the lower court thereon, find here in favor of the plaintiff, and render judgment upon that finding. Can the judgment in the criminal case be used as evidence in the civil suit, to prove that the defendant stole the goods to recover the value of which this suit is brought? If this judgment had been rendered upon a plea of guilty, the record of that plea could be introduced not as conclusive evidence against the defendant, but as an admission upon his part. It would not differ from an extrajudicial admission of liability made by him, except that more importance might be attached to it because of the solemnity attaching to the surroundings under which it was made, and the deliberation attending the entering of such a plea. But in this case the defendant did not plead guilty. He pleaded not guilty and insisted that he was not guilty during the progress of the trial. It is uniformly held that a judgment of conviction-effect in viction or acquittal in a criminal case is not proper evidence in a civil case, to establish the facts which were necessary to be established in order to secure such conviction or acquittal. The parties to the criminal prosecution are different. The rules of evidence are different in the two classes of cases, and the purposes and objects sought to be accom Evidence-con civil aetion. plished are essentially different. In a criminal case, the defendant cannot be made to testify, and no inference can be drawn from the fact that he does not testify, while in a civil suit his adversary may use him as a witness if he desires. He may, however, in the criminal case, testify in his own behalf, and to allow the record of that judgment to be used as evidence in the civil suit would be giving effect to the defendant's testimony ant's testimony given upon the criminal trial. In a criminal case, the guilt of the accused must be proven beyond a reasonable doubt, while this is not the rule in civil trials. The criminal proceeding is between the state and the accused party, and seeks vindication of a public right, while in the civil suit the purpose sought is vindication of purely private rights and interests. For all of these reasons, as well as others which might be enumerated, the authorities uniformly hold that the judgment in a criminal case is not proper evidence in a civil suit, to prove the facts on which it is based. Freeman, Judgm. § 319; Black, Judgm. § 529; 15 R. C. L., title "Judgments," §§ 476, 477; Micks v. Mason, 11 L.R.A. (N.S.) 653 and note (145 Mich. 212, 108 N. W. 707, 9 Ann. Cas. 291). Of course, in a civil suit, where it becomes material to prove the existence of such judgment in the criminal case, the record of it is ordinarily conclusive evidence of the fact. In a suit for malicious prosecution, the plaintiff, in order to recover, is under the necessity of proving that the criminal prosecution, the basis of the civil suit, has been terminated favorably to him, and, for the purpose of proving this fact, the record of the judgment in the criminal case is, of course, conclusive. So, in suits to recover penalties, where the same are conditioned upon the conviction of the defendant, the record of his conviction of the offense, out of which the penalty grows, is conclusive of that question. There are (91 W. Va. 156, 112 S. E. 301.) other instances, as will appear from the authorities above cited, in which the judgment in the criminal case is competent evidence in a civil suit, but this is limited to those instances in which it is necessary to prove the existence of such judgment as a basis for the recovery. It is not ad missible as proof of the facts upon which it is based. There being no other evidence offered in this case connecting the defendant with the robbery, it follows that the court did not err in rendering the judgment complained of, and the same is affirmed. ANNOTATION. Conviction or acquittal as evidence of facts on which it was based, in a civil I. Scope, 261. II. General rule: a. Rule stated, 262. action. b. Rationale; dissimilarity of object, issues, proof, parties, etc., 264. c. Application: 1. Convictions, 269. 2. Acquittals, 270. I. Scope. The present annotation is confined to a treatment of cases between private parties which are purely civil in form and character, as distinguished from cases which are penal or quasi public in form and character, i. e., in which the public as such are concerned, such, for instance, as suits brought for the benefit of the public to recover penalties, to impose a punishment, or declare a forfeiture. Illustrative of the classes of cases excluded are suits upon penal bonds, suits to declare a forfeiture of property, suits to remove public officials from office for misconduct, proceedings for the disbarment of attorneys or for the revocation of licenses to practise professions or trades, etc. Also excluded are the cases which deal merely with the question whether or not the judgment in a criminal prosecution bars a subsequent civil action based upon the same offense, as distinguished from the question whether or not a conviction or acquittal constitutes evidence of the truth of the facts on which it was based, in the civil action. And the annotation is not concerned with cases where the fact of the conviction or acquittal itself, as distinguished on the facts on which it was II.-continued. d. When conviction secured on evidence 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. based, is a relevant fact in the civil action, either as the foundation of that action, or as a defense, as in case of an action for a reward conditioned on conviction, actions for malicious prosecution in which an acquittal is a part of the plaintiff's cause of action, actions on policies of life insurance defended on the ground that insured was executed as a result of a conviction, etc. The distinction is brought out in Burt v. Union Cent. L. Ins. Co. (1900) 59 L.R.A. 393, 44 C. C. A. 548, 105 Fed. 419, affirmed in (1902) 187 U. S. 362, 47 L. ed. 216, 23 Sup. Ct. Rep. 139, an action on an insurance policy upon the life of one who had been convicted of the crime of murder and executed, where the circuit court of appeals, in sustaining a demurrer, while basing its decision that no recovery could be had on the ground of public policy, gave conclusive effect to the judgment rendered against the insured on the criminal trial, although the complaint alleged that the insured. was in fact innocent of the crime of which he was convicted. And on appeal the United States Supreme Court, in affirming the judgment of the lower court, and in answering the contention that the adjudication in the criminal prosecution as to the guilt of the insured was not conclusive, since such |