16 Ohio App. 229 | Ohio Ct. App. | 1921
Plaintiff in error was convicted in the mayor’s court in the village of Milford, Ohio, of unlawfully keeping a place where intoxicating liquors were sold, in violation of Section 13195, General Code, and was sentenced to pay a fine therefor, from which judgment he prosecutes error to this court.
Two propositions are urged as grounds of error upon which a reversal is sought. First, that the
As to the first proposition it is enough to say that there was sufficient evidence, as disclosed by the ■record, to justify the holding of Rappold as keeper.
The second proposition presents a more difficult question. The charge for the unlawful keeping is fixed at a time between the first day of June, 1921, and the twentieth day of July, 1921, in the city of Cincinnati, Hamilton county, Ohio.
At the opening of the testimony for the defense, counsel for defendant, plaintiff in error here, made the following proffer:
“Me. Wood: I offer in evidence, on behalf of the defendant, the record, verified, of the municipal court of the city of Cincinnati, in the case of the State of Ohio v. Frank Rappold, on the charge of unlawfully possessing two drinks of whiskey on the 10th of June, 1921, and ask that the same be marked ‘Defendant’s Exhibit 1.’ Also the record of the municipal court of Cincinnati, verified, of the case of State v. George Burke, for the sale of two drinks of intoxicating liquor on June 10, 1921, and ask that the same be marked ‘Defendant’s Exhibit 2.’ ”
To these exhibits, the state objected, and, over the objection of the defendant, Rappold, this evidence was excluded.
In the case of State v. Dewey, 65 Vt., 196, at page 199, in the opinion, the court says:
“In this case the record of a former acquittal of the charge of the same keeping as alleged in the information was offered in evidence as bearing upon one material fact that must be established in each case to obtain a conviction. The evidence was admissible upon the principle that will be found to run through nearly all the American cases, that the judgment of a court of competent jurisdiction directly upon a particular point is, as between the parties, conclusive in relation to such point, though the purpose and subject matter of the two suits be different; hence a judgment may not only be evidence, but conclusive evidence in relation to such point, and still be no bar, strictly and technically speaking, to a second action.”
The case of Coffey v. United States, 116 U. S., 436, was a case in which Coffey had been acquitted
“The judgment of acquittal in the criminal proceeding ascertained that the facts which were the basis of that proceeding, and are the basis of this one, and which are made by the statute the foundation of any punishment, personal or pecuniary, did not exist. This was ascertained once for all, between the United States and the claimant, in the criminal proceeding, so that the facts cannot be again litigated between them, as the basis of any statutory punishment denounced as a consequence of the existence of the facts. This is a necessary result of the rules laid down in the unanimous opinion of the judges in the case of Rex v. Duchess of Kingston, 20 Howell’s State Trials, 355, 538, and which were formulated thus: ‘The judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar,- or, as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court; and the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose.”
And on this point the circuit court, rendering a judgment of forfeiture, was reversed, and judgment for claimant ordered, for the reason, as stated
Several cases are cited by counsel for the state in support of their claim that this record was inadmissible, among them the case of State v. Roach et al., 83 Kans., 606. In that case Roach was charged with the commission of a misdemeanor by keeping a place where intoxicating liquors were unlawfully sold. At the same time an action was brought against Roach and others to enjoin the maintenance of such place as a common nuisance. They were acquitted on the criminal charge by the verdict of a jury. The injunction charge was afterward submitted to the trial court upon the same evidence, and a judgment was rendered for the defendants expressly upon the ground that the acquittal constituted an adjudication of the controversy involved in the civil case. In the two actions, the parties were the same, and the acts complained of were the same and were made illegal by the same statute. Upon review, the court, in the opinion, says that a final judgment in one was necessarily conclusive in the other, unless this result was prevented by the fact that one action was criminal and the other civil, and it proceeded to hold that the difference in the degree of proof required in a criminal case and a civil case prevented the application of the doctrine of res adjudicata, and reversed the case. This case is, therefore, not in point.
Counsel for the state further cite Martin v. Blattner, 68 Ia., 286, where, as in the Roach case, there was a question of a criminal action and a civil action by way of injunction.
Our conclusion, therefore, is that the evidence on
We desire to make our position plain, and again state that the prosecution in the municipal court of Cincinnati for unlawfully possessing two drinks of whiskey cannot be used as a bar to the prosecution in the mayor’s court of Milford for unlawfully keeping a place, but the record is admissible as tending to show that he did not so keep a place.
As above stated, the defendant proffered the record of the municipal court of Cincinnati, verified, in the case of State v. George Burke, prosecuted for the sale of two drinks of intoxicating liquor on June 10, 1921, to which exhibit the state objected, and, over the objection of plaintiff in error, Rappold, this record was excluded. The claim of counsel for plaintiff in error is that this record was admissible, it being a judicial determination that no such sales were made. This position is not tenable, as it will be noted in all the cases cited that to be admissible as determinative of the fact upon a particular point the fact must not only be identical, but the actions must be between the same parties. In this instance the cases are not between the same parties, one being the ease of State v. Burke, and the other the case under consideration, State v. Rappold. Therefore, the record of the municipal court of Cincinnati with reference to the case of State v. Burke was properly excluded in the case at bar.
For error in excluding the record in the municipal court of Cincinnati of acquittal of plaintiff in error of the charge of selling, as evidence of that fact, the judgment of conviction by the mayor’s court of Milford, and the judgment of the court of common pleas, affirming the same, are reversed and held for naught, and the case will be remanded to the mayor’s court of Milford for a new trial.
Judgment reversed.