Gambar halaman
PDF
ePub

Abb. Adm. 261, Fed. Cas. No. 167, it was held that the record of acquittal of a seaman, on his trial on the charge of stealing from the cargo, was not conclusive in a libel brought by him for wages, in which the alleged larceny was set up as an act involving the forfeiture of wages.

In Metropolitan L. Ins. Co. v. Hand (1920) 25 Ga. App. 90, 102 S. E. 647, it was held that the fact that in a criminal prosecution the beneficiary named in an insurance policy sued upon had been convicted of voluntary manslaughter for the felonious killing of his wife, the assured, did not prevent the jury, in an action on the policy, from accepting plaintiff's sworn statement to the effect that the killing was accidental and unintentional; and that the court did not err in refusing to admit in evidence the judgment of conviction in support of the coroner's verdict, which, by the terms of the policy, was admissible in evidence.

In Thompson v. Whitman (1874) 18 Wall. (U. S.) 469, 21 L. ed. 897, an action of trespass for the seizure of a sloop by a sheriff, who justified on the ground that the crew of the vessel were engaged in unlawfully raking for oysters and clams, whereby the vessel became subject to forfeiture, it was held that the record of a conviction of the offense, rendered before a justice of the peace in the state in which the seizure was made, was not conclusive, but only prima facie, evidence of the facts stated therein, which, although jurisdictional, could be contradicted.

In Supulver v. Gilchrist & Dawson (1922) 28 N. M. 339, 211 Pac. 595, it was held that a conviction of larceny conclusively established the ownership or right of property as between the thief and the one to whom the property was restored, by virtue of a statutory provision to the effect that upon conviction of the offender the stolen property shall be returned to the owner, so as to preclude the convicted person maintaining an action to recover the same. In other words, that the conviction established the essential fact which established the right of property as between the ac

[ocr errors]

cused and the owner as charged in the indictment.

In connection with the above-cited Louisiana cases, see other Louisiana cases cited supra, II. a. And in connection with the New York cases, see Sims v. Sims (1878) 75 N. Y. 466, where, after discussing the rules pro and con, it was held that a record of conviction of crime in a foreign court, if admissible against a party in a civil action, is not conclusive of the fact of guilt. Also the apparently contrary decisions cited supra, II. a, and II. b.

IV. Effect of introduction by convicted person.

Where a party against whom a criminal prosecution resulted in a judgment introduces such judgment in evidence in a civil action, it may be considered as evidence of facts on which it was based.

Thus, in a prosecution for assault and battery, where the defendant introduced in evidence in mitigation of damages the record of his conviction of the same assault and battery, it has been held that it was not error for the trial judge to charge the jury that, the record of conviction having been given by the convicted person himself, the fact that an assault had been committed was not matter of doubt. Moses v. Bradley (1838) 3 Whart. (Pa.) 272. The court said: "If testimony is introduced purposely, or comes out unexpectedly, from a party's witnesses, it is still testimony, and open to consideration in every point of view; and this record, introduced by the party for one purpose, became evidence for every purpose; and he who introduced it could not say it was not true."

And in Porter v. Seiler (1854) 23 Pa. 424, 62 Am. Dec. 341, an action to recover for a personal injury inflicted by the defendant upon plaintiff during an assault, it was held that the record of criminal proceedings against the defendant, wherein he was convicted of the assault in question, but acquitted of an assault and battery Iwith intent to kill, was evidence that an assault and battery were committed, when voluntarily given by the

defendant himself, and admitted without objection by the plaintiff.

In connection with these cases, see Jarvis v. Manlove (1854) 5 Harr. (Del.) 452, wherein it was held that the one who had been convicted of an assault and battery could not, over the plaintiff's objection, introduce in evidence, in a subsequent civil action based on the assault, the record of the conviction. This was upon the broad ground that judgments in criminal actions are not evidence in civil suits.

V. Conviction based on confession of guilt.

An exception to the rule that a judgment in a criminal prosecution cannot be received in a civil action, to establish the truth of the facts on which it was rendered, has been held to arise where the defendant in the criminal case pleaded guilty, and the record showing such plea is offered in evidence in a civil action against him growing out of the same offense, such a record being admitted not as a judgment establishing the fact, but as the deliberate declaration or admission against interest that the fact is so, or, in other words, a solemn confession of the very matter charged in the civil action.

[blocks in formation]

-

Illinois. Schreiner v. High Court, I. C. O. F. (1889) 35 Ill. App. 576 (manslaughter); Young v. Copple (1893) 52 Ill. App. 547 (assault with deadly weapon).

Indiana. Rudolph v. Landwerlen (1883) 92 Ind. 34 (assault and battery); Hamm v. Romine (1884) 98 Ind. 77 (assault and battery).

Iowa.-Root v. Sturdivant (1886) 70 Iowa, 55, 29 N. W. 802 (assault and battery); Crawford v. Bergen (1894) 91 Iowa, 675, 60 N. W. 205 (assault and battery); Jones v. Cooper (1896) 97 Iowa, 735, 65 N. W. 1000 (plea of

guilty to charge of adultery admitted as admission in civil action for criminal conversation); Hauser v. Griffith (1897) 102 Iowa, 215, 71 N. W. 223 (assault and battery).

Kansas.

Musick v. Enos (1915) 95 Kan. 397, 148 Pac. 624 (assault and battery).

Kentucky.-Watson v. Kentucky & I. Bridge & R. Co. (1910) 137 Ky. 619, 126 S. W. 146, 129 S. W. 341 (felonious burning of property).

Maine. Bradley v. Bradley (1834) 11 Me. 367 (conviction of husband on plea of guilty for assault and battery of his wife admissible in support of libel by wife for divorce from bed and board on ground of cruelty). Massachusetts. Mead v. Boston

(1849) 3 Cush. 404. Michigan.—Anders v. Clover (1917) 198 Mich. 763, 165 N. W. 640 (assault and battery). See also Breitenbach v. Trowbridge (1887) 64 Mich. 393, 8 Am. St. Rep. 829, 31 N. W. 402.

Minnesota. Wischstadt v. Wischstadt (1891) 47 Minn. 358, 50 N. W. 225 (slander); Klein v. Pasch (1922) 153 Minn. 291, 190 N. W. 338 (plea of guilty of mayhem admitted in action for assault and battery).

Missouri.-Corwin v. Walton (1853) 18 Mo. 71, 59 Am. Dec. 285 (assault Casualty Co. (1907) 123 Mo. App. 682, and battery); Myers v. Maryland 101 S. W. 124 (assault).

Nebraska. Wisnieski v. Vanek (1904) 5 Neb. (Unof.) 512, 99 N. W. 258 (unlawful sale of intoxicating liquors).

[ocr errors]

New Hampshire. Burgess v. Burgess (1867) 47 N. H. 395 (conviction of adultery on plea of guilty admitted in action for divorce for adultery): Green v. Bedell (1869) 48 N. H. 546 (assault and battery).

New Jersey.-Patton v. Freeman (1791) 1 N. J. L. 113 (plea of guilty to counterfeiting securities on which civil action is brought held admissible in latter action); Stewart v. Stewart (1921) 93 N. J. Eq. 1, 114 Atl. 851 (plea of guilty of adultery made in criminal prosecution therefor held to be substantive evidence of the fact in proceeding for divorce for the adultery).

[blocks in formation]

North Dakota. Satham v. Muffle (1912) 23 N. D. 63, 135 N. W. 797 (assault and battery); Engstrom v. Nelson (1919) 41 N. D. 530, 171 N. W. 90 (assault and battery).

Ohio. Clark v. Irvin (1839) 9 Ohio, 131 (assault and battery); Hendricks v. Fowler (1898) 9 Ohio C. D. 209, 16 Ohio, C. C. 597 (assault and battery).

Oregon. Meyers v. Dillon (1901) 39 Or. 581, 65 Pac. 867, 66 Pac. 814 (holding that a conviction based on a plea of guilty of conducting a gambling game was admissible as evidence, -not conclusive, however,-in a civil action brought to recover money lost in the game so conducted); Spain v. Oregon-Washington R. & Nav. Co. (1915) 78 Or. 355, 153 Pac. 470, Ann. Cas. 1917E, 1104 (convicted of being drunk and disorderly; civil action for arrest and ejection from train).

Texas. Sumner v. Kinney (1911) Tex. Civ. App., 136 S. W. 1192 (assault and battery); Balaguer v. Macey (1922) Tex. Civ. App. 238 S. W. 322 (holding that a conviction based upon a plea of guilty of selling cider containing an unlawful alcoholic content was admissible in an action on notes given for the purchase price of such cider as an admission as to the character of the cider). Vermont.—Russ v. Good (1917) 92 Vt. 202, 102 Atl. 481 (assault and battery).

[ocr errors]

West Virginia. INTERSTATE DRY GOODS STORES V. WILLIAMSON (reported herewith) ante, 258.

Wisconsin. Birchard v. Booth (1855) 4 Wis. 67 (assault and battery); Yeska v. Swendrzynski (1907) 133 Wis. 475, 133 N. W. 959 (assault and battery); Karlen v. Hadinger (1911) 147 Wis. 78, 132 N. W. 591 (plea of guilty to charge of selling adulterated milk held admissible in action for damages brought by the purchaser of the milk).

In Rudolph v. Landwerlen (Ind.) supra, the court said: "Over the ob

jection of the defendant, the plaintiff was permitted to introduce in evidence the record of a criminal prosecution of the defendant for the same assault and battery, and his conviction thereunder, upon his plea of guilty, before a justice of the peace. It is contended that this was error, because the appellee was not a party to the action the record of which was so admitted in evidence; and appellant's counsel have cited authorities relating to the effect of judgments by way of estoppel. Unquestionably, this record could not operate as an estoppel, but no such effect was claimed for it. The court instructed the jury that this record should not be regarded in this case as conclusive upon the defendant, but only as an admission on his part of a material fact in issue in the case,' and further instructed as to the character of the evidence as an admission. plea of guilty must be presumed to have been made by the defendant in person, solemnly and without coercion, with opportunity to take advice of counsel. In a subsequent civil action involving the same subject-matter, his plea is admissible against him, though it is not conclusive, but is subject, like other confessions, to be explained or controverted. The action of the trial court is sustained by the authorities in this country and in England."

A

And in Pennsylvania a similar conclusion has been reached in the case of a conviction based upon a plea of nolo contendere, which, it was said, is "in substance a plea of guilty." Consolidated Ice Mfg. Co. v. Medford (1908) 18 Pa. Dist. R. 293.

But it has been held that where, as in Virginia, the practice in criminal cases permits an accused to confess a judgment with the assent and at the mercy of the court, without pleading guilty, the record of a conviction so had is not evidence in an action in a civil court for the same act, to prove the commission of the act. In holding, the court in Honaker Howe (1869) 19 Gratt. (Va.) 50, a civil action for assault and battery, said: "It is contended that the confession of judgment in this case was an admission of

so

v.

the facts charged in the indictment, and was on that ground admissible as evidence for the plaintiff in the present action. There is another kind of confession known in the practice of criminal courts under the common law, which is spoken of as an implied confession. That is, where, in a case not capital, the defendant, without pleading guilty, or expressly confessing the truth of the indictment, throws himself on the mercy of the court, and desires to submit to a small fine. This request may be granted or refused by the court, as it may think proper. If the court grants the request, the entry on the record is not 'quod cognovit indictamentum,' as in the case of an express confession, but 'quod non vult contendere cum domino rege, et se posuit in gratiam curiæ' and the defendant is not put to a more direct confession. 1 Chitty, Crim. Law, 431. The effect of such an implied confession is not the same as that of a direct and express confession by the plea of guilty.

[ocr errors]

It is material to inquire whether this proceeding on the part of a defendant involves such a confession of the truth of the charge made in the indictment as to make it admissible at all as evidence against him in a civil action. The essential difference between the effect of a direct or express confession, and that of a confession implied upon a nolo contendere seems to be clearly marked by the difference in the form of the entry. The direct confession is an acknowledgment of the fact charged in the indictment, and accordingly the entry is 'cognovit indictamentum.' No such entry is made upon the plea of nolo contendere, which indicates that it is not understood as an acknowledgment of the fact charged. The entry in such a case imports merely that the defendant is willing and desirous, if the court will allow it, to pay a small fine in order to get rid of the prosecution. Such a proceeding on the part of the defendant implies a confession 'in a manner,' as Hawkins says, of the truth of the charge. But it is, strictly speaking, only an agreement on the part of the defendant, that the fact

charged may be considered as true for the purposes of the case, but for them only. Being unwilling to confess the truth of the charge, he will not plead guilty; thinking it best for him not to submit to a trial, he will not plead not guilty; but desiring to make his peace on the best terms, he throws himself on the mercy of the court, and declares his willingness to pay a fine, without confessing or denying his guilt. He agrees that the court may consider him guilty for the purpose of imposing a fine upon him, but the agreement goes no further.

In Virginia, if the defendant in an indictment for an assault and battery, or other misdemeanor, for which no particular fine is prescribed by statute, confesses the truth of the indictment by a plea of guilty, the court cannot proceed to assess the fine, but a jury must be called for that purpose. Code, chap. 199, § 24. Cases of special fines prescribed by statute are governed by § 3, chap. 43 of the Code. It is not necessary, therefore, in order to afford a foundation for the judgment, as it is in the case of a 'submission,' to regard the proceeding as implying a confession of guilt, for the purposes of the case. Such a confession is neither necessary nor sufficient to support the judgment. The judgment in such a case stands on no other foundation than the consent of the defendant, given in pursuance of the compromise with the commonwealth, that judgment may be entered up against him for the fine agreed upon. Nor is there anything in the fact of proposing or assenting to such a compromise arrangement which necessarily implies an admission of guilt. A defendant may be, and often is, induced to adopt that course by other considerations. But if the proceeding can justly be regarded as implying a confession of guilt for the purposes of the case, the reasons for excluding the record in case of a nolo contendere, as evidence against the defendant in a civil action, apply with at least equal force to a confession of judgment under our practice."

And there is authority to the effect that a plea of nolo contendere, which

is generally defined as in effect an implied confession (as distinguished from a direct admission) of guilt, whereby the defendant throws himself on the mercy of the court, does not constitute such an admission of guilt as will permit of the admission in evidence in a civil suit of a conviction based on such a plea, as evidence of the guilt of the pleader. Birchard v. Booth (1855) 4 Wis. 67, holding, however, that the plea in suit amounted to a confession of guilt so as to render the conviction based thereon admissible in evidence.

And a conviction based, in part at least, upon a confession of guilt, is not admissible as against a third person. Thus in Fonville v. Atlanta & C. Air Line R. Co. (1912) 93 S. C. 287, 75 S. E. 172, rehearing denied in (1912) S. C. —, 76 S. E. 615, an action against a railroad company for the death of a locomotive engineer in a wreck caused by an open switch, it was held that the conviction, upon confession, of a third person of murder by maliciously opening the switch, was not admissible. In holding that the record of conviction and the evidence of confession were inadmissible, the court said: "The general rule that the records in criminal cases are not admissible in civil cases as evidence of the facts upon which a conviction was had is well settled. There are some exceptions, but the general rule is as stated, and it is founded upon sound principles, to wit, the want of mutuality, arising out of the fact that the parties to the record are not the same, and the fact that the course of the proceedings and the rules of decision in the two courts are different. A higher degree of proof is required in criminal than in civil cases." Also, that the conviction of murder disqualified the convicted person as a wit

ness.

As to the conclusiveness and effect in a civil proceeding of a conviction. based upon a plea of guilty in a prior criminal proceeding, it was held in an early English case (Year Brook, 9 Hen. VI. 60a) that a plea of guilty to an indictment concluded the defendant, so that he could not plead not guilty in

a civil action brought against him for the same matter. But this conclusion apparently stands alone, and has been severely criticized. For instance, in Clark v. Irvin (1839) 9 Ohio, 131, the court referring to the Year Book decision, said that "it is at war with the whole current of modern decisions." In fact the modern authorities apparently concur upon the proposition that the admission is not conclusive in the civil suit, but may be explained or rebutted. See the following cases, which expressly hold that a confession of guilt is not conclusive:

Illinois. Schreiner v. High Court, I. C. O. F. (1889) 35 Ill. App. 576. Indiana. Rudolph v. Landwerlen (1883) 92 Ind. 34.

Iowa.-Crawford v. Bergen (1894) 91 Iowa, 675, 60 N. W. 205; Jones v. Cooper (1896) 97 Iowa, 735, 65 N. W. 1000; Hauser v. Griffith (1897) 102 Iowa, 215, 71 N. W. 223.

Michigan. Anders v. Clover (1917) 198 Mich. 763, 165 N. W. 640. Nebraska. Wisnieski v. Vanek (1904) 5 Neb. (Unof.) 512, 99 N. W. 258.

[ocr errors]
[blocks in formation]

v.

Muffle

North Dakota. Satham (1912) 23 N. D. 63, 135 N. W. 797; Engstrom v. Nelson (1919) 41 N. D. 530, 171 N. W. 90.

Ohio.-Clark v. Irvin (1839) 9 Ohio, 131; Hendricks v. Fowler (1898) 9 Ohio C. D. 209, 16 Ohio C. C. 597.

Oregon. Meyers v. Dillon (1901) 39 Or. 581, 65 Pac. 867, 66 Pac. 814; Spain v. Oregon-Washington R. & Nav. Co. (1915) 78 Or. 355, 153 Pac. 470, Ann. Cas. 1917E, 1104.

Pennsylvania. Consolidated Ice Mfg. Co. v. Medford (1908) 18 Pa. Dist. R. 293 (conviction upon plea of nolo contendere).

[merged small][merged small][ocr errors][merged small]
« SebelumnyaLanjutkan »