48 S.W.2d 1076 | Ky. Ct. App. | 1932
Certifying the law.
In June, 1929, Albert Spivey was killed, and the following October Gentry Richardson and others were indicted for this homicide. In February, 1930, Richardson was put upon his separate trial, and convicted of the offense of manslaughter. At this trial, the present appellee, Bessie Spivey, the widow of Albert Spivey, testified for Richardson, and in her testimony deposed that in the trouble wherein her husband was killed he had fired three shots before any other shots were fired.
After the conviction of Richardson, Bessie Spivey was indicted for the offense of false swearing, the commonwealth claiming that she had sworn falsely in the Richardson trial when she stated that her husband had fired the first three shots. She was tried on this indictment at the February, 1931, term of the Estill circuit court and acquitted. In the meantime, Richardson had appealed his judgment of conviction, and that judgment had been reversed by this court in an opinion which may be found in Richardson v. Commonwealth,
The court deferred passing on the plea until the commonwealth had introduced all of the testimony upon which it intended to rely for a conviction, and, it being then admitted that the plea of res adjudicata set up the facts with reference to the issues involved and the result of the trial under the first indictment for false swearing, the court peremptorily instructed the jury to find the appellee not guilty, being, as he said, of the opinion that her first trial established the truth as between her and the commonwealth of the evidence she had given in the Richardson trials. The commonwealth has appealed to this court for the purpose of having the law certified as to the correctness of the trial court's ruling in this regard.
It is first insisted by the commonwealth that under our Code of Criminal Practice no provision is made for a plea of res adjudicata. It relies on section 172 of the Criminal Code of Practice, which states that there are but three kinds of pleas to an indictment: (1) The plea of guilty; (2) that of not guilty; (3) that of former conviction or acquittal. However, the plea of res adjudicata, if it be available in a criminal cause, is really, when advanced by the accused, but an element of the plea of not guilty, because, if it be sustained, then the accused must be held, as was the accused in this case, not guilty of the offense charged. We are of the opinion that, when advanced by the accused, the plea of res adjudicata is available under the plea of not guilty. This brings us to the question whether or not the plea of res adjudicata *486 is available in a criminal case, and, if so, was it aptly applied in this case.
In the celebrated case of Rex v. The Duchess of Kingston, 20 Howard State Trials 538, the principles of res adjudicata in a criminal cause were formulated. The principle is not often invoked because its effect is necessarily to a considerable extent lost sight of and is swallowed up in a broader doctrine of former conviction or former acquittal. Of course, the latter doctrines are applicable only where there is an identity of offense charged and an identity of the parties. As, in the instant case, the alleged false swearing took place in different trials, there was not an identity of offense. But as pointed out in the case of Commonwealth v. Ellis,
In Jay v. State,
In Freeman on Judgments (5th Ed.), sec 648, the learned author says:
"There is no reason why a final judgment in a criminal prosecution or proceeding should not under proper circumstances be given conclusive effect as an estoppel or bar. The same policy which dictates the rule in civil cases requires it in criminal cases. . . The principles applicable to judgments in criminal cases are in general identical so far as the question of estoppel is involved with the principles recognized in civil cases. . . . Even where the crimes charged are different and a plea of former jeopardy therefore unavailable, a criminal judgment is res adjudicata of every matter determined by it where the conditions essential to the operation of this doctrine are present. But under such circumstances *487 the previous judgment is conclusive only as to those matters which were in fact in issue and actually or necessarily adjudicated."
The position taken by this court in the case of Teague v. Commonwealth,
Further in the Teague case, the question involved was whether the acquittal of the offense for which the accused had been indicted had been procured by false testimony. If so, then the accused was guilty of false swearing for which he was then being tried. But in the case before us, Bessie Spivey was tried under the first indictment for false swearing for the alleged offense of, giving false testimony in Richardson's first trial, and it *488 was held by the jury that the testimony which she had given in Richardson's first trial was true. Under the second indictment for false swearing, Bessie Spivey was tried, not for having procured her acquittal on her first trial for false swearing by giving in that trial false testimony, but for having again testified in Richardson's behalf that which a jury impaneled to decide the very issue of its truth or falsity had held to be true. The Teague case is not controlling, but the principles of res adjudicata hereinbefore discussed are, and, when applied, fully justified the trial court in directing the peremptory instruction it did. The law is so certified.
Whole court sitting.