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have been directly interested in the subject-matter of the proceedings, with the right to make defense, to adduce testimony, to cross-examine the witnesses on the opposite side, to control, in some degree, the proceedings, and to appeal from the judgment. Persons not having these rights are regarded as strangers to the cause. Privies are, of course, bound, as they are the representatives of the real parties. An exception to this rule is allowed in the case of verdicts and judgments upon subjects of a public nature, such as customs and the like; in most, or all, of which cases, evidence of reputation is admissible, and also in cases of judgments in rem; and it is said a judgment, when used by way of inducement, or to establish a collateral fact, may be admitted, though the parties are not the same, as, producing the record of conviction in order to prove the legal infamy of a witness, or to prove what was known at a trial, and cases of this nature. 1 Greenl. Ev. §§ 522 et seq. record in this case was of a character entirely different. It was a public prosecution in conducting which defendant had no agency or power, or rights, or interests at stake. It would be subversive of all justice to allow such testimony. What could be more efficacious toward a recovery by plaintiff than to show he had been indicted and tried for the crime, and acquitted? Does this bind the defendant and defeat his plea that the charge was true? So far as the defendant in the indictment and the people are concerned, that record can speak anywhere and everywhere, and its tones must be heeded. But on what principle is it that defendant should not be permitted to prove the charge, notwithstanding the verdict in the criminal trial? Though that is conclusive between the parties, it is not true as against the defendant. Verdicts of juries in criminal cases are not always responsive to the facts, though public policy demands they should be held, when followed by a judgment, as truth itself; but this only as to parties and privies, or in regard

to some public matter, of which we have spoken."

And in Lewis v. Petayvin (1825) 4 Mart. N. S. (La.) 4, an action on a note given by defendant, and which was alleged to have been lost, plaintiff having been robbed of it, it was held that the record of the conviction of a slave charged with robbing the plaintiff was not admissible to show that he was robbed, since the record of the conviction was res inter alios acta as to the person against whom it was offered.

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And in Parker v. Kenyon (1873) 112 Mass. 264, an action by the payee for the conversion of a promissory note by the maker, who took it for the purpose of computing interest and retained it under a claim that it had been paid, it was held that the acquittal of the maker on a trial for the larceny of the note, in which prosecution the payee was complainant, was res inter alios acta, and inadmissible, although payment was relied upon in defense of the prosecution. court further said: "The issue of larceny on that trial was different from the issue of conversion in this action. The one involved a question of intent; the other might be under a claim of right." And in Summers v. Rutherford (1917) Mo. App. 195 S. W. 511, an action for conversion of a cow which, it was alleged, defendant procured from one who had stolen it, in holding that the record of the thief's conviction was inadmissible, the court said: "There was error committed in permitting plaintiff to read in evidence over defendants' objections and exceptions the information and judgment of conviction in the criminal case against Glodo for stealing a red cow from plaintiff on or about the 24th day of March, 1916; this, because that judgment was rendered in a proceeding commenced by the state of Missouri against Glodo, neither the plaintiff nor the defendants in this action being parties thereto, and it could not be binding, nor is it admissible in this proceeding, because the defendants herein had no opportunity in that case to examine the witnesses, make

a defense, or appeal from the judgment if they desired. We have been unable to find any case in Missouri where this identical question has arisen, but the general well-known rule that a transaction between two parties ought not operate to the disadvantage of a third applies here. In Broom's Legal Maxims, 8th ed. p. 748, it is held that a person cannot be affected by any evidence, decree, or judgment to which he was not actually, or in consideration of law, privy."

Likewise, in Chamberlain v. Pierson (1898) 31 C. C. A. 157, 59 U. S. App. 55, 87 Fed. 420, an action brought against the receiver of a railroad company to recover damages for injuries sustained by plaintiff while traveling as an express messenger, it was held that the record of conviction of certain persons of the crime of causing the derailment of the train at the time the plaintiff was injured, was res inter alios acta, and inadmissible on behalf of the defendant.

And in Illinois C. R. Co. v. Quirk (1893) 51 Ill. App. 607, an action against a railroad company, brought by the administrator of a locomotive engineer who was killed in a wreck, alleged to have resulted from an unsafe condition of the track, it was held that a record showing the conviction of persons of interfering with the track and causing the wreck was inadmissible in behalf of the defendant, because of the difference between the parties to the two proceedings.

So, in Countryman v. United States (1886) 21 Ct. Cl. (Fed.) 474, on the trial of a case submitted to the court of claims, where the claimant presented a voucher for merchandise delivered to an Indian agent pursuant to a contract, it was held that the government could not impeach the voucher by the record of the trial of an indictment against the agent for fraud in issuing the voucher, to which proceeding the claimant was not a party.

Nor, it was held in Myers v. Maryland Casualty Co. (1907) 123 Mo. App. 682, 101 S. W. 124, is the record of an acquittal of the charge of assault

of one whom the plaintiff, in an action on an accident insurance policy, accused of assaulting him and of inflicting the injuries for which he sought to recover, admissible on behalf of the insurance company to show that the plaintiff was not the victim of an unprovoked assault, since the proceedings in the criminal action were res inter alios acta.

And in Casgrain v. Leblanc (1893) Rap. Jud. Quebec 4 C. S. 350, it was held that the bondsmen on a bond to keep the peace might show, in an action thereon, that the principal in the bond, although convicted of an attempt to commit an assault, was not guilty of such conduct as would constitute a breach of the bond, since the conviction was not res judicata as to the defendants, who were not parties thereto.

In Marceau v. Travelers' Ins. Co. (1894) 101 Cal. 338, 35 Pac. 856, 36 Pac. 813, an action to recover the amount of a life insurance policy which contained a clause declaring it invalid if death resulted from "intentional injuries inflicted by the insured or any other person," which policy had been issued to one thereafter shot to death by another, and the effect of which clause the plaintiff sought to evade on the ground that the person committing the homicide was insane at the time so as to make the shooting not "intentional," it was held that the judgment was not admissible to show that the record contained no suggestion of insanity, for the purpose of establishing the presumption that the accused was not insane; since, as the plaintiff was not a party to the criminal prosecution, he could not be affected by its result.

And it has been held that even identity of parties will not make a judgment in a criminal action admissible in evidence in a civil action, if there be no identity of issue. Chantangco v. Abaroa (1910) 218 U. S. 476, 54 L. ed. 1116, 31 Sup. Rep. 34. And see Stone v. United States (1897) 167 U. S. 178, 42 L. ed. 127, 17 Sup. Ct. Rep. 778, and United States v.

Donaldson-Shultz Co. (1906) 79 C. C. A. 403, 148 Fed. 581.

Nor, it has been held, does the fact that the prosecutor in the criminal prosecution is the plaintiff in the civil action create the privity necessary to abrogate the rule of nonadmissibility. Beckworth v. Phillips (1909) 6 Ga. App. 859, 65 S. E. 1075; Myers v. Maryland Casualty Co. (1907) 123 Mo. App. 682, 101 S. W. 124.

And a party to the civil suit who was not a party to the criminal prosecution cannot avoid the effect of the rule by employing counsel to prosecute the criminal case. Kusnir v. Pressed Steel Car Co. (1912) 201 Fed. 146.

However, there is authority to the effect that every member of the public is entitled to avail himself of a conviction, provided he was not a witness for the prosecution. See Maybee v. Avery (1820) 18 Johns. (N. Y.) 352, as set out and quoted infra, III.

In York v. Forscht (1854) 23 Pa. 391, it was said that the record of a conviction of an offender was admissible in an action to recover a reward offered for the detection and conviction of persons committing a certain offense, since there is mutuality between the parties.

c. Application.

1. Convictions.

The general rule of nonadmissibility in civil actions, of judgments in criminal prosecutions, has been applied to numerous judgments of convictions rendered for various offenses.

Thus, in the reported case (INTERSTATE DRY GOODS STORES v. WILLIAMSON, ante, 258), applying the rule that a judgment of conviction or acquittal in a criminal case is not proper evidence in a civil case, to establish facts which were necessary to be established in order to secure such conviction or acquittal, it was held that the record of a conviction of the defendant of the larceny of certain property was not competent evidence, in a civil suit to recover the value of the property stolen from the plaintiff, to establish the fact that the defendant stole the property. And in

Kowalski v. McAdoo (1919) 93 N. J. L. 340, 107 Atl. 477, affirmed on opinion below in (1921) 96 N. J. L. 293, 114 Atl. 927, and certiorari denied in (1921) 257 U. S. 649, 66 L. ed. 416, 42 Sup. Ct. Rep. 57, it was held that a conviction of petit larceny did not constitute evidence in a subsequent civil action brought to recover wages, of the truth of the fact of commission of the larceny.

And in Castrique v. Imrie (1870) L. R. 4 H. L. 414, 39 L. J. C. P. N. S. 350, 23 L. T. N. S. 48, 19 Week. Rep. 1, 5 Eng. Rul. Cas. 899-H. L., Blackburn, J., said, arguendo, that a judgment of conviction on an indictment for forging a bill of exchange, though conclusive as to the prisoner being a convicted felon, was not only not conclusive, but was not even admissible, evidence of the forgery, in an action on the bill, though the conviction must have proceeded on the ground that the bill was forged. This statement was based on the principle that a judgment is not conclusive as to anything but the point decided.

In Quinn v. Quinn (1844) 16 Vt. 426, it was held that the conviction of a husband, of assault and battery upon his wife, was not admissible in a suit by her for divorce for "intolerable severity," to prove that he actually assaulted her, since the conviction might have been obtained on her evidence.

In Stewart v. Profit (1912) Tex. Civ. App., 146 S. W. 563, an action in trespass to try title, where the issue was whether a certain person was a white woman, it was held that evidence of her conviction of marrying a negro under an indictment charging marriage with a negro, she being a white woman, was not admissible in evidence.

And in Bennett v. Fulmer (1865) 49 Pa. 155, it was held that the record of a criminal prosecution showing a conviction of defendant for forcible entry and detainer was not admissible in evidence in a civil action of trespass to try title, the parties being different and the plaintiffs having been prosecutors and witnesses.

And that a conviction, in a pro

ceeding in a consistory court, against a mother and father for living together in fornication, is not admissible in evidence in a subsequent civil proceeding to prove that they were not married, because it was res inter alios acta, see Hillyard v. Grantham, as set out in Brownsword v. Edwards (1750) 2 Ves. Sr. 246, 28 Eng. Reprint, 159. And a sentence of excommunication against parents for fornication has been held not admissible in an ejectment suit to bastardize the issue, since, having been rendered in a criminal proceeding, it is res inter alios acta. Hilliard's Case, cited in Cas. t. Hardw. 311, 95 Eng. Reprint, 211.

In Curtis v. Macon R. & Light Co. (1916) 18 Ga. App. 145, 88 S. E. 997, an action to recover damages for negligence, which was defended by pleading the plaintiff's contributory negligence growing out of his alleged, but denied, drunkenness and recklessness, it was held error to admit in evidence a police-court judgment convicting defendant for being drunk and for reckless driving at the time of the injury.

And it has been held that a record of the conviction of the beneficiary in an insurance policy, of the manslaughter of the insured, is no evidence in a suit on the policy of anything that is to be inferred or argued from it, especially of the insured's death or who killed him. Schreiner

v. High Court, I. C. O. F. (1890) 35 Ill. App. 576.

And a judgment showing a prosecution and conviction of defendant's slave for the killing of plaintiff's slave, has been held inadmissible in a civil action to recover damages for the loss of the slave. Steel v. Cazeaux (1820) 8 Mart. (La.) 318, 13 Am. Dec. 288. The court said that the reasons for the exclusion of the conviction were that "it is res inter alios acta, and that the conviction may have been effected by testimony not admissible in the civil action."

In Smith v. Brown (1851) 2 Mich. 161, the record in a prosecution for perjury committed in an answer to a bill of chancery, and in which the

complainant appeared as prosecutor, but did not testify, was held not admissible in the chancery suit to destroy the effect of the answer, where, after the conviction, and while motions in arrest of judgment and for a new trial were pending, the accused died. The court considered that, while these motions were pending, the accused could not have been regarded as a convicted felon, and that the proceedings did not afford legal evidence of his guilt; that the verdict of the jury would not, at common law, render the accused incompetent, and that the criminal proceedings could not be used to discredit the answer.

And, for a better reason, a conviction of criminal libel based on the issuing of a circular is not res judicata as to statements made in subsequent circulars. American Malting Co. v. Keitel (1913) 126 C. C. A. 277, 209 Fed. 351.

In Wilson v. Wilson (1832) Wright (Ohio) 128, a judgment of another state convicting a husband of the crime of bigamy was held not to constitute proof of his adultery, in an action brought against him for divorce on that ground, since the crime of adultery is not made out without proof of carnal connection.

2. Acquittals.

Numerous cases have applied the rule that an acquittal in a criminal prosecution does not constitute evidence of innocence in a subsequent civil action based on the criminal act.

Thus, in Sibley v. St. Paul F. & M. Ins. Co. (1878) 9 Biss. 31, Fed. Cas. No. 12,830, it was held that acquittal on a charge of arson in burning an insured building not only was not conclusive, but was entitled to no weight, upon the question of guilt, in an action brought by the accused to recover upon the policy of insurance issued to him upon the building destroyed.

And in Cottingham v. Weeks (1875) 54 Ga. 275, in holding that the record of the acquittal of one prosecuted for the murder of plaintiff's

husband was not admissible in evidence in a civil action brought to recover for the homicide, the court said: "We have looked carefully into the authorities for cases or principles to sustain the right to introduce this judgment in the criminal case as evidence in the civil one. It is not between the same parties; different rules as to the competency of witnesses, and as to the weight of evidence necessary to the finding, exist. Besides, the present plaintiff was in no sense a party; she had no part nor lot in it; she could not even examine or cross-examine a witness. Suffice it that there is, so far as we can find, no case to be found to sustain the introduction."

And it has been held that an acquittal in a criminal prosecution for assault and battery is not admissible in evidence, at the instance of the defendant in a civil action based upon the same alleged offense. Powell v. Wiley (1906) 125 Ga. 823, 54 S. E. 732; Chernes v. Rosenwasser (1918) 181 App. Div. 837, 169 N. Y. Supp. 38; Rosenberg v. Salvatore (1881) 16 N. Y. S. R. 801, 1 N. Y. Supp. 326; Shook v. Peters (1883) 59 Tex. 393; Stevens v. Friedman (1905) 58 W. Va. 78, 51 S. E. 132; Shires v. Boggess (1913) 72 W. Va. 109, 77 S. E. 542.

And in Vadney v. Albany R. Co. (1900) 47 App. Div. 207, 62 N. Y. Supp. 140, an action for wrongful ejection from a street car, it was held that a record of acquittal of plaintiff of disorderly conduct was not admissible in support of a contention that he was not guilty of such disorderly conduct as justified the act of ejectment, the defendant having pleaded such a justification. And see Gulf, C. & S. F. R. Co. v. Moody (1895) Tex. Civ. App. 30 S. W. 574, wherein it was held that in an action to recover actual damages for unlawful ejection from a train, the railroad. company cannot prove "the result of a criminal prosecution" instituted against the passenger after his removal from the train, since the sole issue was merely whether the ejection was wrongful.

So, it has been held that the ac

quittal of a person charged with intoxication is not competent evidence in a civil action between other parties, to establish the fact that the prosecuted person was not intoxicated at the time charged, that being an issue in the civil suit. McKenna v. Whipple (1922) 97 Conn. 695, 118 Atl. 40.

And in Corbley v. Wilson (1874) 71 Ill. 209, 22 Am. Rep. 98, an action for slander by charging plaintiff with the commission of an unnatural crime, it was held that a judgment of acquittal rendered in a public prosecution of the plaintiff for the offense was inadmissible on his behalf for any purpose, since the defendant was not a party to the criminal action, nor bound thereby. See this case as quoted supra, II. b. In England v. Bourke (1799) 3 Esp. (Eng.) 80, it was held that where the slanderous charge complained of in a civil action is that plaintiff was accessory to a felony, the acquittal of his alleged principal is not conclusive upon the . defendant.

And a judgment of acquittal rendered in a prosecution for criminal libel has been held inadmissible in an action for damages for the publication of the alleged libel. Worcester v. Ocampo (1912) 22 Philippine, 42.

And it has been held that, in malicious prosecution, an acquittal of the plaintiff, though an indispensable condition of the action, is not evidence of his innocence between the parties, since a judgment in a criminal prosecution is not admissible as evidence of the facts upon which it was based. Wilson v. Manhattan R. Co. (1892) 2 Misc. 127, 20 N. Y. Supp. 852, affirmed on opinion below in (1894) 144 N. Y. 632, 39 N. E. 495. And see Chernes v. Rosenwasser (1918) 181 App. Div. 837, 169 N. Y. Supp. 38.

And in Tumlin v. Parrott (1889) 82 Ga. 732, 9 S. E. 718, it was held that a record of acquittal of malicious mischief in killing cattle was inadmissible in a civil action to recover damages for the killing, even though the plaintiff in the civil action was the prosecutor in the criminal prosecution. The court said that the

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