Albrecht v. State

62 Miss. 516 | Miss. | 1885

Arnold, J.,

delivered the opinion of the court.

Several of the errors assigned are so connected with others that the consideration of a few of them will dispose of the whole.

It is not perceived that there is any merit in the objection made to the testimony of the witnesses Thomas and Brown, and to the book or record of liquor licenses kept by Thomas as sheriff. The entries in the book were made in the discharge of official duty on the day of the date of the bond sued on, and the book was competent original evidence of the transaction to which it referred. 1 Greenl. Ev., §§ 115-116.

The court properly overruled the motion made by the appellants to require the informer, Chandler, to give security for cost. The bond sued on was payable to the State, the action was in the name of the State, and necessarily so under the statute, and it was to all intents and purposes an action prosecuted by the State, and the disposition to be made of the penalty, if recovered, and the facts that the State proceeded upon information, and that the suit was brought by private counsel, as the statute provides it may be, or by counsel associated with the district attorney, did not change the parties or the character of the proceeding. Code, §§ 1104, 1111. Section 2366 of the code provides that in no case shall the State be required to give security for cost.

The record does not show that the court erred in refusing to arrest the progress of the trial for the examination or preparation of special bills of exception. The statute requires that bills of exception to any ruling of the court before the jury retire from the box must be tendered and signed during the trial or during the term of the court. Such bills signed after the expiration of the term, like a general bill of exception to overruling a motion for a new trial not presented to the judge during the term' or within ten days after the end of the term, would, unless consented to by the parties, be nullities. Allen v. Levy, 59 Miss. 613. If a special bill of exception is tendered during the trial of the cause in which it is taken and the facts are therein truly stated, it should be then and there signed by the judge; but if, when tendered, it is found to be incorrect, or if the preparation of the bill should produce such delay as to seriously obstruct the administration of justice, the exceptions should be noted or preserved in such manner and with such certainty that there would be no difficulty in understanding exactly what the exceptions and rulings of the court were, when reducing it to form, afterward during the term. We concur in the view expressed by the Supreme Court of the United States that the convenient dispatch of business in most cases does not allow the preparation and signature of bills of exceptions during the progress of a trial. Their requisite certainty and accuracy can hardly be secured if any considerable delay afterward be permitted. Turner et al. v. Yates, 16 How. 14-29.

The court erred in holding that the record of the indictment and conviction of Albrecht was conclusive as an estoppel against him and the sureties on his bond. As a general rule a verdict and judgment in a criminal case, though admissible to establish the fact of the mere rendition of the judgment, cannot be given in evidence in a civil action to establish the truth of the facts on which it was rendered. 1 Greenl. Ev., § 537; 2 Taylor on Ev., § 1693; 2 Whart. Ev., § 776; Freeman on Judgments, § 319. A person convicted of any offense is not estopped by the conviction from disputing the facts upon which it is based in a civil action, because his adversary in the civil action would not have been barred if the prosecution had terminated in acquittal. Freeman on Judgments,' § 319. But a record of conviction in a.criminal case upon a plea of guilty is admissible in a civil action involving the same subject-matter, not as a conclusive judgment against the party, but as an admission or confession of the facts. 1 Greenl. Ev., § 5.27, a; 2 Taylor on Ev., § 1694; 2 Whart. Ev., §§ 783, 838. When a person’s plea of guilty is used as evidence against him, it is always competent for him to show the circumstances under which it was made. Its being made in a court does not deprive him of this right. It is essential even to a judicial confession that it should be made of the free will of the party and with full and perfect knowledge of its nature and consequences. 1 Greenl. Ev., § 216.

It appears that the conviction of Albrecht was upon a plea of guilty, and the record thereof was admissible, but it was only primd facie evidence against him and his sureties. Webb v. The State, 4 Coldwell 199.

Reversed.