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have been directly interested in the to some public matter, of which we subject matter of the proceedings, have spoken." with the right to make defense, to ad- And in Lewis v. Petayvin (1825) duce testimony, to cross-examine the 4 Mart. N. S. (La.) 4, an action on witnesses on the opposite side, to a note given by defendant, and which control, in some degree, the proceed- was alleged to have been lost, plainings, and to appeal from the judg- tiff having been robbed of it, it was ment. Persons not having these held that the record of the conviction rights are regarded as strangers to of a slave charged with robbing the the cause. Privies are, of course, plaintiff was not admissible to show bound, as they are the representa- that he was robbed, since the record tives of the real parties. An excep- of the conviction was res inter alios tion to this rule is allowed in the case acta as to the person against whom of verdicts and judgments upon sub- it was offered. jects of a public nature, such as And in Parker v. Kenyon (1873) customs and the like; in most, or all, 112 Mass. 264, an action by the payee of which cases, evidence of reputa- for the conversion of a promissory tion is admissible, and also in cases note by the maker, who took it for of judgments in rem; and it is said the purpose of computing interest a judgment, when used by way of in- and retained it under a claim that it ducement, or to establish a collateral had been paid, it was held that the acfact, may be admitted, though the par- quittal of the maker on a trial for the ties are not the same, as, producing larceny of the note, in which prosecu. the record of conviction in order to tion the payee was complainant, was prove the legal infamy of a witness, res inter alios acta, and inadmissible, or to prove what was known at a although payment was relied upon trial, and cases of this nature. 1 in defense of the prosecution. The Greenl. Ev. $$ 522 et seq.

The court further said: “The issue of record in this case was of a character larceny on that trial was different entirely different. It was a public from the issue of conversion in this prosecution in conducting which de- action. The one involved a question fendant had no agency or power, or of intent; the other might be under rights, or interests at stake. It would a claim of right.” And in Summers be subversive of all justice to allow v. Rutherford (1917)

Mo. App. --, such testimony. What could be more 195 S. W. 511, an action for converefficacious toward a recovery by plain- sion of a cow which, it was alleged, tiff than to show he had been indicted defendant procured from who and tried for the crime, and acquit- had stolen it, in holding that the rected? Does this bind the defendant ord of the thief's conviction was inand defeat his plea that the charge admissible, the court said: “There was true? So far as the defendant was error committed in permitting in the indictment and the people are plaintiff to read in evidence over deconcerned, that record can speak fendants' objections and exceptions anywhere and everywhere, and its the information and judgment of contones must be heeded. But on what viction in the criminal case against principle is it that defendant should Glodo for stealing a red cow from not be permitted to prove the charge, plaintiff on or about the 24th day of notwithstanding the verdict in the March, 1916; this, because that judgcriminal trial? Though that is con- ment was rendered in a proceeding clusive between the parties, it is not commenced by the state of Missouri true as against the defendant. Ver- against Glodo, neither the plaintiff dicts of juries in criminal cases are nor the defendants in this action not always responsive to the facts, being parties thereto, and it could not though public policy demands they be binding, nor is it admissible in should be held, when followed by a this proceeding, because the defendjudgment, as truth itself; but this only ants herein had no opportunity in that as to parties and privies, or in regard case to examine the witnesses, make



a defense, or appeal from the judg. of one whom the plaintiff, in an action ment if they desired. We have been on an accident insurance policy, acunable to find any case in Missouri cused of assaulting him and of inwhere this identical question has flicting the injuries for which he arisen, but the general well-known sought to recover, admissible on berule that a transaction between two half of the insurance company to parties ought not operate to the dis- show that the plaintiff was not the advantage of a third applies here. victim of unprovoked assault, In Broom's Legal Maxims, 8th ed. p. since the proceedings in the criminal 748, it is held that a person cannot action were res inter alios acta. be affected by any evidence, decree, And in Casgrain v. Leblanc (1893) or judgment to which he was not Rap. Jud. Quebec 4 C. S. 350, it was actually, or in consideration of law, held that the bondsmen on a bond to privy."

keep the peace might show, in an acLikewise, in Chamberlain v. Pier- tion thereon, that the principal in son (1898) 31 C. C. A. 157, 59 U. S. the bond, although convicted of an App. 55, 87 Fed. 420, an action attempt to commit an assault, was not brought against the receiver of a guilty of such conduct as would conrailroad company to recover damages stitute a breach of the bond, since for injuries sustained by plaintiff the conviction was not res judicata while traveling as an express mes

as to the defendants, who were not senger, it was held that the record parties thereto. of conviction of certain persons of In Marceau V. Travelers' Ins. Co. the crime of causing the derailment (1894) 101 Cal. 338, 35 Pac. 856, 36 of the train at the time the plaintiff Pac. 813, an action to recover the was injured, was res inter alios amount of a life insurance policy acta, and inadmissible on behalf of which contained a clause declaring the defendant.

it invalid if death resulted from And in Illinois C. R. Co. v. Quirk "intentional injuries inflicted by the (1893) 51 Ill. App. 607, an action insured or any other person," which against a railroad company, brought policy had been issued to one thereby the administrator of a locomotive after shot to death by another, and engineer who was killed in a wreck, the effect of which clause the plaintiff alleged to have resulted from an un- sought to evade on the ground that safe condition of the track, it was held the person committing the homicide that a record showing the conviction was insane at the time so as to make of persons of interfering with the

the shooting not "intentional," it track and causing the wreck was in

was held that the judgment was not admissible in behalf of the defendant,

admissible to show that the record because of the difference between

contained no suggestion of insanity, the parties to the two proceedings. So, in Countryman v. United States

for the purpose of establishing the

presumption that the accused was (1886) 21 Ct. Cl. (Fed.) 474, on the trial of a case submitted to the court

not insane; since, as the plaintiff was of claims, where the claimant present

not a party to the criminal prosecued a voucher for merchandise deliv.

tion, he could not be affected by its ered to an Indian agent pursuant to a

result. contract, it was held that the govern

And it has been held that even ment could not impeach the voucher identity of parties will not make a by the record of the trial of an indict- judgment in a criminal action admisment against the agent for fraud in sible in evidence in a civil action, if issuing the voucher, to which proceed- there be no identity of issue. Chaning the claimant was not a party. tangco v. Abaroa (1910) 218 U. S.

Nor, it was held in Myers v. Mary- 476, 54 L. ed. 1116, 31 Sup. Rep. 34. land Casualty Co. (1907) 123 Mo. App. And see Stone v. United States (1897) 682, 101 S. W. 124, is the record of 167 U. S. 178, 42 L. ed. 127, 17 Sup. an acquittal of the charge of assault Ct. Rep. 778, and United States v.

Donaldson-Shultz Co. (1906) 79 C. C. Kowalski v. McAdoo (1919) 93 N. J. A. 403, 148 Fed. 581.

L. 340, 107 Atl. 477, affirmed on Nor, it has been held, does the fact opinion below in (1921) 96 N. J. L. that the prosecutor in the criminal 293, 114 Atl. 927, and certiorari prosecution is the plaintiff in the civil denied in (1921) 257 U, S. 649, 66 action create the privity necessary to L. ed. 416, 42 Sup. Ct. Rep. 57, it was abrogate the rule of nonadmissibility. held that a conviction of petit larBeckworth v. Phillips (1909) 6 Ga. ceny did not constitute evidence in App. 859, 65 S. E. 1075; Myers v. a subsequent civil action brought Maryland Casualty Co. (1907) 123 Mo. to recover wages, of the truth of the App. 682, 101 S. W. 124.

fact of commission of the larceny. And a party to the civil suit who And in Castrique v. Imrie (1870) was not a party to the criminal prose- L. R. 4 H. L: 414, 39 L. J. C. P. N. S. cution cannot avoid the effect of the 350, 23 L. T. N. S. 48, 19 Week. Rep. rule by employing counsel to prose- 1, 5 Eng. Rul, Cas. 899-H. L., Blackcute the criminal case. Kusnir v. burn, J., said, arguendo, that a judgPressed Steel Car Co. (1912) 201 Fed. ment of conviction on an indictment 146.

for forging a bill of exchange, However, there is authority to the though conclusive as to the prisoner effect that every member of the public being a convicted felon, was not only is entitled to avail himself of a con- not conclusive, but was not even adviction, provided he was not a witness missible, evidence of the forgery, in for the prosecution. See Maybee v. an action on the bill, though the conAvery (1820) 18 Johns. (N. Y.) 352, viction must have proceeded on the as set out and quoted infra, III. ground that the bill was forged. This

In York v. Forscht (1854) 23 Pa. statement was based on the principle 391, it was said that the record of that a judgment is not conclusive as a conviction of an offender was ad- to anything but the point decided. missible in an action to recover a In Quinn v. Quinn (1844) 16 Vt. reward offered for the detection and 426, it was held that the conviction conviction of persons committing a of a husband, of assault and battery certain offense, since there is mutu- upon his wife, was not admissible in ality between the parties.

a suit by her for divorce for "in

tolerable severity," to prove that he c. Application.

actually assaulted her, since the con1. Convictions.

viction might have been obtained on The general rule of nonadmissibility her evidence. in civil actions, of judgments in In Stewart v. Profit (1912) Tex. criminal prosecutions, has been ap- Civ. App. —, 146 S. W. 563, an action plied to numerous judgments of con- in trespass to try title, where the victions rendered for various offenses. issue was whether a certain person

Thus, in the reported case (INTER- was a white woman, it was held that STATE DRY GOODS STORES V. WILLIAM- evidence of her conviction of marrySON, ante, 258), applying the rule that ing a

negro under an indictment a judgment of conviction or acquittal charging marriage with a negro, she in a criminal case is not proper evi- being a white woman, was not admisdence in a civil case, to establish sible in evidence. facts which were necessary to be es- And in Bennett v. Fulmer (1865) tablished in order to secure such con- 49 Pa. 155, it was held that the recviction or acquittal, it was held that ord of a criminal prosecution showing the record of a conviction of the de- a conviction of defendant for forcible fendant of the larceny of certain entry and detainer was not admissible property was not competent evidence, in evidence in a civil action of tresin a civil suit to recover the value pass to try title, the parties being of the property stolen from the plain- different and the plaintiffs having tiff, to establish the fact that the de- been prosecutors and witnesses. fendant stole the property. And in And that a conviction, in a pro


ceeding in a consistory court, against complainant appeared as prosecutor, a mother and father for living to- but did not testify, was held not adgether in fornication, is not admis- missible in the chancery suit to desible in evidence in a subsequent civil stroy the effect of the answer, where, proceeding to prove that they were after the conviction, and while monot married, because it was res inter tions in arrest of judgment and for alios acta, see Hillyard v. Grantham, new trial were pending, the acas set out in Brownsword v. Edwards cused died. The court considered (1750) 2 Ves. Sr. 246, 28 Eng. Reprint, that, while these motions were pend159. And a sentence of excommuni- ing, the accused could not have been cation against parents for fornica. regarded as a convicted felon, and tion has been held not admissible in that the proceedings did not afford an ejectment suit to bastardize the legal evidence of his guilt; that the issue, since, having been rendered in verdict of the jury would not, at coma criminal proceeding, it is res inter mon law, render the accused incomalios acta. Hilliard's Case, cited in petent, and that the criminal proceedCas. t. Hardw. 311, 95 Eng. Reprint, ings could not be used to discredit 211.

the answer. In Curtis v. Macon R. & Light Co. And, for a better reason, a con(1916) 18 Ga. App. 145, 88 S. E. 997, viction of criminal libel based on the an action to recover damages for issuing of a circular is not res judinegligence, which was defended by cata as to statements made in subpleading the plaintiff's contributory sequent circulars. American Maltnegligence growing out of his alleged, ing Co. v. Keitel (1913) 126 C. C. A. but denied, drunkenness and reck- 277, 209 Fed. 351. lessness, it was held error to admit In Wilson v. Wilson (1832) Wright in evidence a police-court judgment (Ohio) 128, a judgment of another convicting defendant for being drunk state convicting a husband of the and for reckless driving at the time crime of bigamy was held not to conof the injury.

stitute proof of his adultery, in an And it has been held that a record action brought against him for diof the conviction of the beneficiary vorce on that ground, since the crime in an insurance policy, of the man- of adultery is not made out without slaughter of the insured, is no evi- proof of carnal connection. dence in a suit on the policy of any

2. Acquittals. thing that is to be inferred or argued from it, especially of the insured's

Numerous cases have applied the

rule that an acquittal in a criminal death or who killed him. Schreiner v. High Court, I. C. 0. F. (1890) 35

prosecution does not constitute eviIll. App. 576.

dence of innocence in a subsequent And a judgment showing a prose

civil action based on the criminal

act. cution and conviction of defendant's slave for the killing of plaintiff's

Thus, in Sibley v. St. Paul F. & M.

Ins. Co. (1878) 9 Biss. 31, Fed. Cas. slave, has been held inadmissible in a civil action to recover damages for

No. 12,830, it was held that acquittal the loss of the slave. Steel v. Cazeaux

on a charge of arson in burning an (1820) 8 Mart. (La.) 318, 13 Am. Dec.

insured building not only was not 288. The court said that the reasons

conclusive, but was entitled to for the exclusion of the conviction weight, upon the question of guilt, in were that “it is res inter alios acta, an action brought by the accused to and that the conviction may have recover upon the policy of insurance been effected by testimony not admis- issued to him upon the building desible in the civil action."

stroyed. In Smith v. Brown (1851) 2 Mich. And in Cottingham v. Weeks (1875) 161, the record in a prosecution for 54 Ga. 275, in holding that the recperjury committed in an answer to a ord of the acquittal of one prosebill of chancery, and in which the cuted for the murder of plaintiff's

no а



husband was not admissible in evi- quittal of a person charged with indence in a civil action brought to toxication is not competent evidence recover for the homicide, the court in a civil action between other parties, said: “We have looked carefully to establish the fact that the proseinto the authorities for cases or prin- cuted person was not intoxicated at ciples to sustain the right to intro- the time charged, that being an issue duce this judgment in the criminal in the civil suit. McKenna v. Whipple case as evidence in the civil one. It (1922) 97 Conn. 695, 118 Atl. 40. is not between the same parties; dif- And in Corbley v. Wilson (1874) 71 ferent rules as to the competency of Ill. 209, 22 Am. Rep. 98, an action for witnesses, and as to the weight of slander by charging plaintiff with the evidence necessary to the finding, commission of an unnatural crime, it exist. Besides, the present plaintiff was held that a judgment of acquittal was in no sense a party; she had no rendered in a public prosecution part nor lot in it; she could not even of the plaintiff for the offense was examine or cross-examine a witness. inadmissible on his behalf for any Suffice it that there is, so far as we purpose, since the defendant was not can find, no case to be found to sus- a party to the criminal action, nor tain the introduction.”

bound thereby. See this And it has been held that an acquit- quoted supra, II. b. In England v. tal in a criminal prosecution for as- Bourke (1799) 3 Esp. (Eng.) 80, it sault and battery is not admissible was held that where the slanderous in evidence, at the instance of the charge complained of in a civil action defendant in a civil action based up- is that plaintiff was accessory to a on the same alleged offense. Powell felony, the acquittal of his alleged v. Wiley (1906) 125 Ga. 823, 54 S. E. principal is not conclusive upon the . 732; Chernes v. Rosenwasser (1918) defendant. 181 App. Div. 837, 169 N. Y. Supp. And a judgment of acquittal ren38; Rosenberg v. Salvatore (1881) 16 dered in a prosecution for criminal N. Y. S. R. 801, 1 N. Y. Supp. 326; libel has been held inadmissible in Shook v. Peters (1883) 59 Tex. 393; an action for damages for the publiStevens v. Friedman (1905) 58 W. Va. cation of the alleged libel. Worcester 78, 51 S. E. 132; Shires v. Boggess v. Ocampo (1912) 22 Philippine, 42. (1913) 72 W. Va. 109, 77 S. E. 542. And it has been held that, in mali

And in Vadney v. Albany R. Co. cious prosecution, an acquittal of the (1900) 47 App. Div. 207, 62 N. Y. plaintiff, though an indispensable Supp. 140, an action for wrongful condition of the action, is not eviejection from a street car, it was held dence of his innocence between the that a record of acquittal of plaintiff parties, since a judgment in a crimof disorderly conduct was not admis- inal prosecution is not admissible as sible in support of a contention that evidence of the facts upon which he was not guilty of such disorderly it was based. Wilson v. Manhattan conduct as justified the act of eject- R. Co. (1892) 2 Misc. 127, 20 N. Y. ment, the defendant having pleaded Supp. 852, affirmed on opinion below such a justification. And see Gulf, in (1894) 144 N. Y. 632, 39 N. E. 495. C. & S. F. R. Co. v. Moody (1895) And Chernes Rosenwasser

Tex. Civ. App. 530 S. W. 574, (1918) 181 App. Div. 837, 169 N. Y. wherein it was held that in an action Supp. 38. to recover actual damages for unlaw- And in Tumlin v. Parrott (1889) ful ejection from a train, the railroad 82 Ga. 732, 9 S. E. 718, it was held company cannot prove “the result of that a record of acquittal of malia criminal prosecution” instituted cious mischief in killing cattle was against the passenger after his remov- inadmissible in a civil action to real from the train, since the sole cover damages for the killing, even issue was merely whether the ejection though the plaintiff in the civil action was wrongful.

was the prosecutor in the criminal So, it has been held that the ac- prosecution. The court said that the



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