Commonwealth v. Evans
101 Mass. 25
Mass.
1869
Check Treatment
Wells, J.

The former conviction for assault and battery is not pleaded as a bar to this indictment. As the death occurred after that conviction, the offence now prosecuted was not then complete; and was not capable of judicial determination. The two offences are not identical in law. Commonwealth v. Roby 12 Pick. 496. Commonwealth v. Cutler, 9 Allen, 486.

The identity, in fact, of the assault which caused the death with that which was the subject of the former conviction, is *27conceded. The record was therefore competent to prove the fact of such conviction. Commonwealth v. M’Pike, 3 Cush. 181. The only question is, as to the effect of that judgment, as evidence, upon the issues of fact raised in the trial of this case for manslaughter. The court below ruled that it established conclusively that the assault was unjustifiable, and therefore disproved the position of the defendant in this case, that the knife was used in self-defence. Upon general principles, the parties being the same, the former judgment must be held to have established all facts which were involved in the issue then tried, and essential to the judgment rendered upon it. The conviction for assault and battery therefore necessarily excludes all justification which could have been set up under the general issue of not guilty. The facts of the assault remain the same; and whatever would sustain the ground of self-defence, now relied on, would have been a complete defence to the former prosecution. The verdict and judgment in that case were therefore rightly held to be a conclusive answer to the attempt at justification made in this case. Commonwealth v. Austin, 97 Mass. 595. Judgment upon the verdict.