failure to convict the defendant of the tort as a crime "would not tend to prove that the tort was not committed."

And in Fowle v. Child (1895) 164 Mass. 210, 49 Am. St. Rep. 451, 41 N. E. 291, a judgment of acquittal in a criminal prosecution for fraud was held inadmissible in a civil action in which evidence of the fraud was admitted, the theory being that the acquittal was res inter alios acta, and could not affect those who were strangers to it.

So, it has been held that a judgment of acquittal in a criminal prosecution for removing crops is not admissible in evidence as bearing upon the title in a civil action to recover the crops. Carlisle V. Killebrew (1889) 89 Ala. 329, 6 L.R.A. 617, 6 So. 756.

And it has been held that an acquittal of an employee upon an indictment charging embezzlement of his employer's funds is not entitled to any effect as evidence in a civil action brought by the employee to recover for services rendered, as an answer to the defense of embezzlement, or as tending to show that in fact the plaintiff did not commit the embezzlement. Massey v. Taylor (1868) 5 Coldw. (Tenn.) 447, 98 Am. Dec. 429. Likewise, in Landa v. Obert (1890) 78 Tex. 33, 14 S. W. 297, it was held that the fact that the plaintiff was tried and acquitted of the crime of embezzlement was not admissible in an action to recover money alleged to have been extorted under duress in consequence of a threatened prosecution for embezzlement.

And in Re Young (1912) 63 Or. 120, 126 Pac. 992, it was held that an acquittal of an applicant for the probate of a lost will, of the charge. of forgery of such will, was inadmissible in the probate proceeding, since the acquittal was not even advisory.

In Jenkins v. Jenkins (1922) 103 Or. 208, 204 Pac. 165, it was held that one against whom a divorce was sought for adultery could not avail herself in such action of an acquittal

in a criminal prosecution for adultery, since a judgment of conviction or acquittal of a party charged with crime cannot be given in evidence ir a civil action to prove or negative the facts upon which it was rendered.

And in Breinig v. Breinig (1856) 26 Pa. 161, a libel for divorce grounded on allegations of cruel and barbarous treatment, brought by a wife against her husband, it was held that the latter was not entitled to show that his wife once made an unsuccessful attempt to have him bound over to keep the peace, since she was not a party to that proceeding in any sense that would make it binding on her.

In Lennon v. E. C. Palmer Co. (1906) 3 La. App. (Orleans) 356, an action to recover for damages caused by an unlighted obstruction on a sidewalk, it was held that evidence of the defendant's acquittal on a charge of noncompliance with a red-light ordinance was not admissible. The court said: "The prosecution was by the city, and the present plaintiff had no power to cross-examine the witness, and the judgment of a criminal court has no effect on a civil court, which is charged with the duty and power to determine for itself all the issues arising in a civil suit." Compare Louisiana cases set out infra, III.

In Mobile Light & R. Co. v. Burch (1915) 12 Ala. App. 421, 68 So. 509, it was held that the fact that plaintiff unsuccessfully prosecuted defendant's servant for the act complained of in the civil suit was entirely immaterial in the latter suit, and could not be pleaded as res judicata.

In Sovereign Camp, W. W. v. Purdom (1912) 147 Ky. 177, 143 S. W. 1021, an action upon an insurance certificate containing a proviso against liability in case the assured came to his death while violating the law, it was held that the judgment of a criminal court acquitting the accused of having killed the assured was not admissible in the action on the policy, as evidence tending to sustain the defense that the assured was himself the aggressor in the

altercation during which he was killed, and, therefore, that when killed he was violating the law within the meaning of the exemption clause in the certificate of insurance. So, in Cluff v. Mutual Ben. L. Ins. Co. (1868) 99 Mass. 317, it was again held in an action on an insurance policy conditioned that it should be void if the insured should die in the known violation of any law, that the record of the acquittal of a person who killed the insured was not competent to prove that the condition of the policy was broken, since the acquittal merely established the fact that the accused was excused by the circumstance of provocation, and not that the insured was guilty of a crime. And in Lillie v. Modern Woodmen (1911) 89 Neb. 1, 130 N. W. 1004, an action upon a fraternal benefit certificate conditioned that if the assured shall die at the hands of his beneficiary, except by accident, the policy shall be void, it was held that, while the fact that the beneficiary murdered the assured would constitute a defense, proof of the conviction of such act is not admissible as evidence either of the facts on which the prosecution was founded, or of the fact that the beneficiary murdered the assured.

d. When conviction secured on evidence of party seeking to use it. According to some authorities, a conviction in a criminal proceeding has been held to be inadmissible in a civil action, where the conviction has actually proceeded on the evidence of the party seeking to make use of it, on the ground that to receive it would be to allow a party to give evidence for himself. And other decisions exclude evidence of a conviction, on the ground of a possibility that the conviction. might have proceeded wholly or partly on the evidence of the party seeking to use it. As a general rule, this is merely an additional reason why such judgments should not be admitted. in evidence, since in the majority of the cases, at least, want of mutuality would afford sufficient ground for the exclusion. However, this is not al31 A.L.R.-18.

ways so; for in Maybee v. Avery (1820) 18 Johns. (N. Y.) 352, the court, although holding that otherwise a record of conviction was admissible as prima facie evidence of guilt, said that a conviction ought not to be received as evidence at all, where the party aggrieved, and who is a party to the civil suit, was a witness on the prosecution, "for it would be impossible to say what influence his evidence had in inducing the verdict." And, in Woodruff v. Woodruff (1834) 11 Me. 475, a libel filed by a wife for divorce from bed and board on the ground of cruelty, it was held that a record of the husband's conviction for an assault and battery upon the wife was inadmissible, it appearing that there was a trial in the case and that the wife was a witness. But for the latter fact a contrary conclusion probably would have been reached. See Maine cases set out infra, III.

But, in the other cases which have touched upon this phase of the question under annotation, the fact that the conviction was, or might have been, based on the evidence of the party seeking to use it, seems to have been merely an additional reason, because of the adherence of the courts of the rendering jurisdictions to the general rule of nonadmissibility.

Thus, in Bennett v. Fulmer (1865) 49 Pa. 155, an action for trespass quare clausum fregit, in which a plea of liberum tenamentum was set up, it was held that the record of the conviction of the tenants for forcible entry and detainer of the premises was not admissible, the plaintiffs having been the prosecutors and the witnesses in the criminal proceeding. And, in Burdon v. Browning (1809) 1 Taunt. 520, 127 Eng. Reprint, 935, it was held that a conviction for perjury, obtained on the testimony of a witness who was a party to the civil suit in which the perjury was committed, was not admissible in behalf of such party. And in Smith v. Rummens (1807) 1 Campb. (Eng.) 9, it was held that a conviction of the offense of driving upon a foot pavement could not be received as an adjudication of the plaintiff's guilt, in an action by him for assault and

false imprisonment, against the person taking him into custody on the charge, and on whose testimony he was convicted.

So, it has been said that a conviction on a prosecution for conspiracy is not legal evidence in support of an action on the case for the same conspiracy, brought against the person convicted, by one upon whose testimony the conviction was partly based, since, if evidence of such a conviction be admitted, such party would, in effect, be swearing in his own case. Hathaway v. Barrow (1807) 1 Campb. (Eng.) 151. So, the record of the conviction of perjury of a defendant in a suit to compel a conveyance of an estate, and who, in his answer, denied the trust alleged, was held in Bartlett v. Pickersgill (1760) 1 Eden, 515, 28 Eng. Reprint, 785, 1 Cox, Ch. Cas. 15, 29 Eng. Reprint, 1041, 1 Revised Rep. 1, not evidence, where plaintiff, whose bill had been dismissed, and upon whose evidence defendant had been convicted, petitioned for leave to file a supplemental bill, in the nature of a bill of review, stating such conviction.

The element of possibility that the conviction might have been obtained on the evidence of the party seeking to use it was given effect in Quinn v. Quinn (1844) 16 Vt. 426, where it was held that a conviction of a husband for assault upon his wife was not admissible, in a suit by her for divorce for "intolerable severity," to prove the assault, since it might have been obtained upon her testimony. And, in Robinson v. Wilson (1849) 22 Vt. 35, 52 Am. Dec. 77, which was an action for trespass for an assault and battery in which the defendant attempted to justify by proving that the plaintiff committed the first assault, it was held that the record of a judgment upon a criminal prosecution for the assault upon defendant, set forth in the defendant's notice of justification, was properly excluded, since it might have been procured by the testimony of the defendant. So, in Gibson v. M'Carty (1736) Cas. t. Hardw. 311, 95 Eng. Reprint, 202, the record of a conviction of the plaintiff of forgery was excluded in a civil suit, under the rule

of evidence that no record of a criminal action can be given in a civil suit because such conviction might have been obtained on the evidence of a party interested in the civil action. And in Reg. v. Fontaine Moreau (1848) 11 Q. B. 1028, 116 Eng. Reprint, 757, 12 Jur. 626, 17 L. J. Q. B. N. S. 187, it was said that, since a former verdict may have been obtained upon the evidence of the party who afterwards seeks to take advantage of it, this is one reason why a conviction upon an indictment at the suit of the King is not evidence in a civil action. And in Lewis v. Petayvin (1825) 4 Mart. N. S. (La.) 4, it was held that the record of the conviction of a slave charged with having robbed a person of a note was not admissible in an action on the note, which was alleged to have been lost, to establish the fact of robbery, since the conviction may have been had on the evidence of the party who offered the record in evidence.

On the other hand, in Davis v. Nest (1833) 6 Car. & P. (Eng.) 167, an action in trespass for breaking into plaintiff's house and stealing certain goods, it was held that evidence of the conviction of plaintiff on a charge of having the goods in his possession, they having been condemned so that he had no property therein, was admissible on behalf of the defense to show that the plaintiff could have had no property therein, although the conviction was based on the evidence of one of the defendants in the civil action. Tindal, Ch. J., said that the conviction was admissible, not to justify the entry into the house, but to show that the plaintiff claimed damages for that to which he had no title, and expressly admitted the record of conviction over the objection that, since the conviction was founded on the evidence of one of the present defendants, it was not receivable in evidence, which objection was made on the theory that a party cannot obtain a conviction on his own evidence and then use it as a defense to an action.

In connection with the above cases, see also Kusnir v. Pressed Steel Car Co. (1912) 201 Fed. 146.

III. Minority rule. There is some authority to the general effect that the record of conviction or acquittal is evidence of the facts on which it was based, in a civil action. Thus, in Bankston v. Folks (1886) 38 La. Ann. 267, in holding that the indictment and verdict convicting the defendant of shooting the plaintiff were admissible in an action for damages for the shooting, the court said that, while such evidence was not conclusive of the plaintiff's right to recover, it "was proper that the jury should consider the result of the criminal prosecution for an offense for the legal consequences of which damages were claimed from its perpetrator." And, in Anderson v. Anderson (1826) 4 Me. 100, 16 Am. Dec. 237, the record of a husband's conviction of adultery was held, in an action for divorce for adultery brought by the wife, to be sufficient proof of the marriage of the parties and of the fact of adultery. Likewise, in Randall v. Randall (1826) 4 Me. 326, it was again held that, in a libel for divorce for adultery, the conviction of the defendant for adultery was admissible, after default, as sufficient proof of the crime charged in the libel.

And in Pennsylvania it has been held a record ordering a husband to pay his wife a certain sum per week for her support under penalty of imprisonment for failure is admissible. in evidence in an action by the husband for divorce for desertion, as “persuasive evidence" of things as they stood at the time of the former proceeding, but not conclusive. Bauder's Appeal (1885) 115 Pa. 480, 10 Atl. 41; Van Dyke v. Van Dyke (1390) 135 Pa. 459, 19 Atl. 1061; Carey v. Carey (1904) 25 Pa. Super. Ct. 223. And the record of a prosecution and conviction of a husband on a charge of deserting his wife has been held persuasive, but not conclusive, evidence of the fact of desertion, to show a want of maintenance of or provision for the wife, which would deprive the husband of a tenancy by curtesy in her lands after her death. Hahn v. Bealor (1890) 132 Pa. 242, 19 Atl. 74.

And in Davis v. Nest (1833) 6 Car.

& P. (Eng.) 167, a conviction of a person of having goods in his possession in which he had no property because of the fact that it had been condemned, was held admissible in a civil suit by him to recover damages for entering his house and taking the same, in proof of the fact that he had no title therein, and was, therefore, attempting to recover damages for the taking of something in which he had no property. And this notwithstanding the conviction was obtained on the evidence of one of the defendants in the civil action, in whose favor the conviction was offered in evidence.

And in Boyle v. Boyle (1688) 3 Mod. 164, 87 Eng. Reprint, 106, it was held that a conviction of bigamy in a criminal court was conclusive of the fact of marriage, in a libel for jactitation of marriage, brought in the spiritual court, against the woman alleged to have been the first wife of the complainant; but of this decision Mr. Starkie, in his work on Evidence (1 Starkie, Ev. p. 279) observes: "Admitting this decision to be law, it can scarcely be inferred that the conviction would have been equally conclusive of civil rights in a temporal court."

In Maybee v. Avery (1820) 18 Johns. (N. Y.) 352, an action for slander based on a charge that the plaintiff was a thief and had stolen defendant's hens, it was held that the record of a conviction of the plaintiff of such stealing was admissible in evidence, and that it constituted prima facie, but not conclusive, proof of the act of stealing so as to justify the defendant's charge, the defendant not having been a witness on the criminal prosecution of the plaintiff. In reaching this conclusion the court apparently was of the opinion that a different rule applies in case of a conviction than would apply in case of an acquittal. The rule of admission laid down was also expressly confined to conviction where the party introducing the record thereof was not a witness for the prosecution. And the court, in reaching the above-stated conclusion, avoided the general rule as to the effect of dissimilarity of parties, etc.

(see supra, II. b), by holding that an exception should be made where, as in a criminal prosecution, the public is interested, in which case any person may avail himself of a conviction. In the latter connection the court said: "It is undoubtedly a rule that, to give a verdict and judgment thereon in evidence, it must be upon the same point and between the same parties or privies. The reason why it must be between the same parties is that otherwise a man would be bound by a decision in which he was not at liberty to cross-examine the witnesses; and generally the benefit of the rule is mutual; and one who is not a party to the cause, and would not be bound by the verdict, if against him, cannot avail himself of it. One of the exceptions to the rule is that where the matter in dispute is a question of public right, in that case, all persons standing in the same situation as the parties are affected by it. It appears to me that a verdict on an indictment forms another exception, and upon the same principle. The public is the party aggrieved, the prosecution is carried on through their functionaries, and any individual may, when necessary, avail himself of a conviction. The plaintiff cannot complain of this, for he had an opportunity to crossexamine the witnesses, to adduce his testimony, and to reverse the judgment if erroneous." And see Byk v. Enright (1924) 203 N. Y. Supp. 296.

In Holcomb v. Cornish (1831) 8 Conn. 375, where one who had been convicted of the offense of profane cursing brought a civil action of trespass for assault and battery, and false imprisonment, and extortion of money, against the justice who prosecuted and convicted the plaintiff on his own personal knowledge of the alleged offense, it was held that the record of conviction which recited the then defendant's presence in court was conclusive evidence in the civil action that the plaintiff therein was present in the justice's court at the time of his conviction.

In Re Crippen, L. R. [1911] Prob. (Eng.) 108, 80 L. J. Prob. N. S. 47, 104 L. T. N. S. 224, 27 Times L. R. 258,

55 Sol. Jo. 273, it was held that where a convicted felon, or the personal representative of a convicted muderer who has been executed, brings any civil proceedings to establish claims, or to enforce rights, which result to the felon, or to the convicted testator, from his own crime, the conviction is admissible in evidence, not merely as proof of the conviction, but also as presumptive proof of the commission of the crime.

In a number of other cases, the judgment in the criminal action was admitted, or apparently regarded as admissible, in evidence in the civil action, but the decisions are merely to the effect that such judgment is not conclusive as to the facts on which it was based. Thus an acquittal of having assaulted plaintiff has been held not to be conclusive evidence of a wrongful assault, in a civil action to recover damages therefor. Beausoliel v. Brown (1860) 15 La. Ann. 543. And in Johnson v. Girdwood (1894) 7 Misc. 651, 28 N. Y. Supp. 151, affirmed on opinion below in (1894) 143 N. Y. 660, 39 N. E. 21, an action to recover damages for an arrest, conviction, and imprisonment procured by fraud, duress, and conspiracy, and for a crime of which plaintiff alleges he was innocent, it was held that the judgment of conviction was not conclusive on the question of plaintiff's guilt, but was open to impeachment. And in Justice v. Gosling (1852) 12 C. B. 39, 138 Eng. Reprint, 815, 21 L. J. C. P. N. S. 94, 16 Jur. 429, a conviction by a justice for "furious driving" in a thoroughfare was held not to be conclusive in an action for tort brought against a constable who took plaintiff into custody on that charge without a warrant, it not appearing that the offense was committed "in view of the constable," in which case only could he arrest without a warrant.

In Virgo v. Virgo (1893) 69 L. T. N. S. (Eng.) 460, a divorce was granted on the ground of incestuous adultery against a husband, who, on trial for rape in the criminal court, was convicted of the minor offense of attempting carnally to know prosecutrix.

In Alexander v. Galloway (1848)