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Abb. Adm. 261, Fed. Cas. No. 167, it cused and the owner as charged in the was held that the record of acquittal indictment. of a seaman, on his trial on the charge In connection with the above-cited of stealing from the cargo, was not Louisiana cases, see other Louisiana conclusive in a libel brought by him cases cited supra, II. a. And in confor wages, in which the alleged lar- nection with the New York oases, see ceny was set up as an act involving Sims v. Sims (1878) 75 N. Y. 466, the forfeiture of wages.

where, after discussing the rules pro In Metropolitan L. Ins. Co. v. Hand and con, it was held that a record of (1920) 25 Ga. App. 90, 102 S. E. 647, conviction of crime in a foreign court, it was held that the fact that in a if admissible against a party in a criminal prosecution the benefici- civil action, is not conclusive of the ary named in an insurance policy sued fact of guilt. Also the apparently conupon had been convicted of voluntary trary decisions cited supra, II. a, and manslaughter for the felonious killing II. b. of his wife, the assured, did not pre

IV. Effect of introduction by convicted vent the jury, in an action on the

person. policy, from accepting plaintiff's sworn statement to the effect that the killing

Where a party against whom a crimwas accidental and unintentional; and

inal prosecution resulted in a judg

ment introduces such judgment in evithat the court did not err in refus

dence in a civil action, it may be coning to admit in evidence the judgment

sidered as evidence of facts on which of conviction in support of the coroner's verdict, which, by the terms

it was based.

Thus, in a prosecution for assault of the policy, was admissible in evidence.

and battery, where the defendant in

troduced in evidence in mitigation of In Thompson v. Whitman (1874)

damages the record of his conviction 18 Wall. (U. S.) 469, 21 L. ed. 897,

of the same assault and battery, it an action of trespass for the seizure of

has been held that was not error a sloop by a sheriff, who justified on

for the trial judge to charge the jury the ground that the crew of the vessel

that, the record of conviction having were engaged in unlawfully raking for

been given by the convicted person oysters and clams, whereby the vessel

himself, the fact that an assault had became subject to forfeiture, it was

been committed was not matter of held that the record of a conviction of

doubt. Moses v. Bradley (1838) 3 the offense, rendered before a justice

Whart. (Pa.) 272. The court said: of the peace in the state in which the

"If testimony is introduced purposely, seizure was made, was not conclusive,

or comes out unexpectedly, from a but only prima facie, evidence of the

party's witnesses, it is still testimony, facts stated therein, which, although

and open to consideration in every jurisdictional, could be contradicted.

point of view; and this record, introIn Supulver v. Gilchrist & Dawson

duced by the party for one purpose, be(1922) 28 N. M. 339, 211 Pac. 595, it came evidence for every purpose; and was held that a conviction of larceny he who introduced it could not say it conclusively established the owner- was not true.” ship or right of property as between And in Porter v. Seiler (1854) 23 Pa. the thief and the one to whom the 424, 62 Am. Dec. 341, an action to reproperty was restored, by virtue of a cover for a personal injury inflicted statutory provision to the effect that by the defendant upon plaintiff during upon conviction of the offender the an assault, it was held that the record stolen property shall be returned to of criminal proceedings against the the owner, so as to preclude the con- defendant, wherein he was convicted victed person maintaining an action of the assault in question, but acto recover the same. In other words, quitted of assault and battery that the conviction established the es- with intent to kill, was evidence that sential fact which established the an assault and battery were comright of property as between the ac- mitted, when voluntarily given by the

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defendant himself, and admitted with- guilty to charge of adultery admitted out objection by the plaintiff.

as admission in civil action for crimIn connection with these cases, see inal conversation); Hauser v. Griffith Jarvis V. Manlove (1854) 5 Harr. (1897) 102 Iowa, 215, 71 N. W. 223 (Del.) 452, wherein it was held that (assault and battery). the one who had been convicted of Kansas. Musick v. Enos (1915) an assault and battery could not, over 95 Kan, 397, 148 Pac. 624 (assault and the plaintiff's objection, introduce in battery). evidence, in a subsequent civil action Kentucky.-Watson v. Kentucky & based on the assault, the record of the I. Bridge & R. Co. (1910) 137 Ky. 619, conviction. This was upon the broad 126 S. W. 146, 129 S. W. 341 (felonious ground that judgments in criminal ac- burning of property). tions are not evidence in civil suits. Maine.-Bradley v. Bradley (1834)

11 Me. 367 (conviction of husband V. Conviction based on confession of guilt.

on plea of guilty for assault and bat

tery of his wife admissible in supAn exception to the rule that a judg

port of libel by wife for divorce from ment in a criminal prosecution cannot

bed and board on ground of cruelty). be received in a civil action, to estab

Massachusetts. Mead v. Boston lish the truth of the facts on which

(1849) 3 Cush, 404. it was rendered, has been held to

Michigan.-Anders v. Clover (1917) arise where the defendant in the crim

198 Mich. 763, 165 N. W. 640 (assault inal case pleaded guilty, and the rec

and battery). See also Breitenbach ord showing such plea is offered in

v. Trowbridge (1887) 64 Mich. 393, 8 evidence in a civil action against him

Am. St. Rep. 829, 31 N. W. 402. growing out of the same offense, such

Minnesota, Wischstadt v. Wischa record being admitted not as a judg

stadt (1891) 47 Minn. 358, 50 N. W. ment establishing the fact, but as the

225 (slander); Klein v. Pasch (1922) deliberate declaration or admission

153 Minn. 291, 190 N. W. 338 (plea of against interest that the fact is so,

guilty of mayhem admitted in action or, in other words, a solemn confes

for assault and battery). sion of the very matter charged in the

Missouri.—Corwin v. Walton (1853) civil action.

18 Mo. 71, 59 Am. Dec. 285 (assault Alabama. Ritter v. Griswold (1911) 2 Ala. App. 618, 56 So. 860 (de Casualty Co. (1907) 123 Mo. App. 682,

and battery); Myers v. Maryland fendant in criminal proceeding for as

101 S. W. 124 (assault). sault and battery pleaded guilty to the

Nebraska. Wisnieski V. Vanek assault pleaded in the civil action). Connecticut.-Eno v. Brown (1793)

(1904) 5 Neb. (Unof.) 512, 99 N. W.

258 (unlawful sale of intoxicating 1 Root, 528 (assault and battery).

liquors). Delaware.—Handle v. Geiler (1895) Del. -, 50 Atl. 632 (defendant con

New Hampshire. — Burgess v. Burvicted of assault on plea of guilty).

gess (1867) 47 N. H. 395 (conviction Illinois. Schreiner v. High Court,

of adultery on plea of guilty admitted I. C. 0. F. (1889) 35 Ill. App. 576

in action for divorce for adultery): (manslaughter); Young v. Copple

Green v. Bedell (1869) 48 N. H. 546 (1893) 52 Ill. App. 547 (assault with

(assault and battery). deadly weapon).

New Jersey.-Patton V. Freeman Indiana. Rudolph v. Landwerlen (1791) 1 N. J. L. 113 (plea of guilty (1883) 92 Ind. 34 (assault and bat- to counterfeiting securities on which tery); Hamm v. Romine (1884) 98 Ind. civil action is brought held admissi77 (assault and battery).

ble in latter action); Stewart V. Iowa.—Root v. Sturdivant (1886) Stewart (1921) 93 N. J. Eq. 1, 114 70 Iowa, 55, 29 N. W. 802 (assault and Atl. 851 (plea of guilty of adulbattery); Crawford v. Bergen (1894) tery made in criminal prosecution 91 Iowa, 675, 60 N. W. 205 (assault therefor held to be substantive eviand battery); Jones v. Cooper (1896) dence of the fact in proceeding for 97 Iowa, 735, 65 N. W. 1000 (plea of divorce for the adultery).

.

New York. Markett v. Gemke jection of the defendant, the plaintiff (1915) 154 N. Y. Supp. 780 (convic- was permitted to introduce in evidence tion on plea of guilty of running dis- the record of a criminal prosecution orderly house held to be admissible as of the defendant for the same assault prima facie evidence of guilt in action and battery, and his conviction thereto remove tenant).

under, upon his plea of guilty, before North Dakota. Satham v. Muffle a justice of the peace. It is contended (1912) 23 N. D. 63, 135 N. W. 797 (as- that this was error, because the apsault and battery); Engstrom v. Nel- pellee was not a party to the action son (1919) 41 N. D. 530, 171 N. W. 90 the record of which was so admitted (assault and battery).

in evidence; and appellant's counsel Ohio.-Clark v. Irvin (1839) 9 Ohio, have cited authorities relating to the 131 (assault and battery); Hendricks effect of judgments by way of estoppel. v. Fowler (1898) 9 Ohio C. D. 209, 16 Unquestionably, this record could not Ohio, C. C. 597 (assault and battery). operate as an estoppel, but no such ef

Oregon.—Meyers v. Dillon (1901) fect was claimed for it. The court in. 39 Or. 581, 65 Pac. 867, 66 Pac. 814 structed the jury that 'this record (holding that a conviction based on a should not be regarded in this case as plea of guilty of conducting a gam- conclusive upon the defendant, but bling game was admissible as evidence, only as an admission on his part of a -not conclusive, however, in a civil material fact in issue in the case,' and action brought to recover money lost further instructed as to the character in the game so conducted); Spain v. of the evidence as an admission. A Oregon-Washington R. & Nav. Co. plea of guilty must be presumed to (1915) 78 Or. 355, 153 Pac. 470, Ann. have been made by the defendant in Cas. 1917E, 1104 (convicted of being person, solemnly and without coercion, drunk and disorderly; civil action for with opportunity to take advice of arrest and ejection from train).

counsel. In a subsequent civil action Texas. Sumner v. Kinney (1911) involving the same subject-matter, his - Tex. Civ. App. 136 S. W. 1192 plea is admissible against him, though (assault and battery); Balaguer v. it is not conclusive, but is subject, like Macey (1922) Tex. Civ. App. other confessions, to be explained or 238 S. W. 322 (holding that a con- controverted. The action of the trial viction based upon a plea of guilty of court is sustained by the authorities selling cider containing an unlawful in this country and in England.” alcoholic content was admissible in an And in Pennsylvania a similar conaction on notes given for the pur- clusion has been reached in the case chase price of such cider as an admis- of a conviction based upon a plea of sion as to the character of the cider). nolo contendere, which, it was said, is

Vermont.-Russ v. Good (1917) 92 "in substance a plea of guilty.ConVt. 202, 102 Atl. 481 (assault and bat- solidated Ice Mfg. Co. v. Medford tery).

(1908) 18 Pa. Dist. R. 293. West Virginia. INTERSTATE DRY But it has been held that where, as GOODS STORES V. WILLIAMSON (re- in Virginia, the practice in criminal ported herewith) ante, 258.

cases permits an accused to confess a Wisconsin. Birchard V. Booth judgment with the assent and at the (1855) 4 Wis. 67 (assault and bat- mercy of the court, without pleadtery); Yeska v. Swendrzynski (1907) ing guilty, the record of a conviction 133 Wis. 475, 133 N. W. 959 (assault so had is not evidence in an action in and battery); Karlen v. Hadinger a civil court for the same act, to (1911) 147 Wis. 78, 132 N. W. 591 prove the commission of the act. In (plea of guilty to charge of selling so holding, the court in Honaker adulterated milk held admissible in .V. Howe (1869) 19 Gratt. (Va.) action for damages brought by the 50, a civil action for assault and purchaser of the milk).

battery, said: "It is contended In Rudolph v. Landwerlen (Ind.) that the confession of judgment supra, the court said: "Over the ob- in this case

an admission of

was

the facts charged in the indictment, charged may be considered as true for and was on that ground admissible as the purposes of the case, but for them evidence for the plaintiff in the pres- only. Being unwilling to confess the ent action. There is another kind of truth of the charge, he will not plead confession known in the practice of guilty; thinking it best for him not criminal courts under the common law, to submit to a trial, he will not plead which is spoken of as an implied con- not guilty; but desiring to make his fession. That is, where, in a case not peace on the best terms, he throws capital, the defendant, without plead- himself on the mercy of the court, ing guilty, or expressly confess- and declares his willingness to pay a ing the truth of the indictment, fine, without confessing or denying throws himself on the mercy of the his guilt. He agrees that the court court, and desires to submit to a small may consider him guilty for the purfine. This request may be granted or pose of imposing a fine upon him, but refused by the court, as it may think the agreement goes no further. proper.

If the court grants the re- In Virginia, if the defendant in an inquest, the entry on the record is not dictment for an assault and battery, 'quod cognovit indictamentum,' as in or other misdemeanor, for which no the case of an express confession, particular fine is prescribed by statute, but 'quod non vult contendere cum confesses the truth of the indictment domino rege, et se posuit in gratiam by a plea of guilty, the court cannot curiæ' and the defendant is not put to proceed to assess the fine, but a jury a more direct confession. 1 Chitty,

must be called for that purpose. Code, Crim. Law, 431. The effect of such chap. 199, § 24. Cases of special fines an implied confession is not the same prescribed by statute are governed by as that of a direct and express con- $ 3, chap. 43 of the Code. It is not fession by the plea of guilty.. necessary, therefore, in order to afIt is material to inquire whether this ford a foundation for the judgment, proceeding on the part of a defendant as it is in the case of a 'submission,' to involves such a confession of the truth regard the proceeding as implying a of the charge made in the indictment confession of guilt, for the purposes as to make it admissible at all as evi- of the case. Such a confession is dence against him in a civil action. neither necessary nor sufficient to supThe essential difference between the port the judgment. The judgment in effect of a direct express confession, such a case stands on no other foundaand that of a confession implied tion than the consent of the defendant, upon a nolo contendere seems to given in pursuance of the compromise be clearly marked by the difference with the commonwealth, that judgin the form of the entry. The direct ment may be entered up against him confession is an acknowledgment of for the fine agreed upon. Nor is there the fact charged in the indictment, anything in the fact of proposing or and accordingly the entry is 'cognovit assenting to such a compromise arindictamentum.' No such entry is rangement which necessarily implies made upon the plea of nolo conten- an admission of guilt. A defendant dere, which indicates that it is not may be, and often is, induced to adopt understood as an acknowledgment of that course by other considerations. the fact charged. The entry in such But if the proceeding can justly be rea case imports merely that the defend- garded as implying a confession of ant is willing and desirous, if the guilt for the purposes of the case, the court will allow it, to pay a small fine reasons for excluding the record in in order to get rid of the prosecution. case of a nolo contendere, as evidence Such a proceeding on the part of the against the defendant in a civil acdefendant implies a confession 'in a tion, apply with at least equal force to manner,' as Hawkins says, of the truth a confession of judgment under our of the charge. But it is strictly practice.” speaking, only an agreement on the And there is authority to the effect part of the defendant, that the fact that a plea of nolo contendere, which

.

a

is generally defined as in effect an im- a civil action brought against him for plied confession (as distinguished the same matter. But this conclusion from a direct admission) of guilt, apparently stands alone, and has been whereby the defendant throws himself severely criticized.

severely criticized. For instance, in on the mercy of the court, does not Clark v. Irvin (1839) 9 Ohio, 131, the constitute such an admission of guilt court referring to the Year Book deas will permit of the admission in evi- cision, said that “it is at war with the dence in a civil suit of a conviction whole current of modern decisions." based on such a plea, as evidence of In fact the modern authorities apparthe guilt of the pleader. Birchard v. ently concur upon the proposition that Booth (1855) 4 Wis. 67, holding, how- the admission is not conclusive in the ever, that the plea in suit amounted to civil suit, but may be explained or a confession of guilt so as to render rebutted. See the following cases, the conviction based thereon admissi- which expressly hold that a confession ble in evidence.

of guilt is not conclusive: And a conviction based, in part at Illinois. Schreiner v. High Court, least, upon a confession of guilt, is I. C. 0. F. (1889) 35 Ill. App. 576. not admissible as against a third per- Indiana. - Rudolph v. Landwerlen son. Thus in Fonville v. Atlanta & (1883) 92 Ind. 34. C. Air Line R. Co. (1912) 93 S. C. 287, Iowa.-Crawford v. Bergen (1894) 75 S. E. 172, rehearing denied in 91 Iowa, 675, 60 N. W. 205; Jones v. (1912) – S. C. —, 76 S. E. 615, an ac- Cooper (1896) 97 Iowa, 735, 65 N. W. tion against a railroad company for 1000; Hauser v. Griffith (1897) 102 the death of a locomotive engineer in Iowa, 215, 71 N. W. 223. a wreck caused by an open switch, it Michigan.-Anders v. Clover (1917) was held that the conviction, upon con- 198 Mich. 763, 165 N. W. 640. fession, of a third person of murder by Nebraska. Wisnieski v. Vanek maliciously opening the switch, was (1904) 5 Neb. (Unof.) 512, 99 N. W. not admissible. In holding that the 2.58. record of conviction and the evidence

New York. Markett v. Gemke of confession were inadmissible, the (1915) 154 N. Y. Supp. 780. court said: “The general rule that North Dakota. Satham y. Muffle the records in criminal cases are not

(1912) 23 N. D. 63, 135 N. W. 797; admissible in civil cases as evidence

Engstrom v. Nelson (1919) 41 N. D. of the facts upon which a conviction

530, 171 N. W. 90. was had is well settled.

There are Ohio.-Clark v. Irvin (1839) 9 Ohio, some exceptions, but the general rule

131; Hendricks v. Fowler (1898) 9 is as stated, and it is founded upon

Ohio C. D. 209, 16 Ohio C. C. 597. sound principles, to wit, the want of

Oregon.— Meyers v. Dillon (1901) mutuality, arising out of the fact that

39 Or. 581, 65 Pac. 867, 66 Pac. 814; the parties to the record are not the

Spain v. Oregon-Washington R. & Nav. same, and the fact that the course of

Co. (1915) 78 Or. 355, 153 Pac. 470, the proceedings and the rules of de

Ann. Cas. 1917E, 1104. cision in the two courts are different.

Pennsylvania, - Consolidated Ice A higher degree of proof is required

Mfg. Co. v. Medford (1908) 18 Pa. in criminal than in civil cases.” Also,

Dist. R. 293 (conviction upon plea of that the conviction of murder dis

nolo contendere). qualified the convicted person as a wit

Texas.-Sumner v. Kinney (1911) ness.

Tex. Civ. App. 136 S. W. 1192. As to the conclusiveness and effect

Vermont.-Russ v. Good (1917) 92 in a civil proceeding of a conviction

Vt. 202, 102 Atl. 481. based upon a plea of guilty in a prior criminal proceeding, it was held in an

West Virginia. INTERSTATE DRY

GOODS STORES WILLIAMSON early English case (Year Brook, 9 Hen.

(reVI. 60a) that a plea of guilty to an in- ported herewith) ante, 258. dictment concluded the defendant, so Wisconsin. Yeska v. Swendrzynthat he could not plead not guilty in ski (1907) 133 Wis. 475, 113 N. W.959;

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