150 So. 491 | Ala. | 1933
The action is on a policy of life insurance issued to Willie C. Gunn, payable to his wife, Mary M. Gunn.
The controlling issue of fact on the trial was whether the insured was murdered by the beneficiary. Admittedly, if such was the fact, no action lies on the policy, either by the beneficiary, or by the daughter, who brings this suit, as assignee of the policy under written assignment made after the death of the insured.
Defendant introduced in evidence the record of the conviction of Mary M. Gunn for the murder of her husband, Willie C. Gunn, in the circuit court of Talladega county (affirmed on appeal, Gunn v. State,
The trial court limited such evidence solely to the impeachment of Mary M. Gunn, as a witness in the case. By statute conviction for crime involving moral turpitude is admissible as going to one's credibility as a witness. Code, § 7722.
The ruling of the trial court in effect excluded the consideration of such conviction as evidence of the fact of the crime.
On the former appeal in this cause (Sovereign Camp W. O. W. v. Gunn,
"In the case of Interstate Dry Goods Stores v. Williamson,
"To the same effect is the holding in the case of Liverpool London Globe Ins. Co. v. Wright,
In Carlisle v. Killebrew,
And in Jay v. State,
While later on in the opinion on former appeal, in dealing with assignments of error 51 and 52, this court held the admissibility of the record of conviction as some evidence of the fact of guilt was not presented, still what was said in the foregoing excerpt tended to support the ruling of the trial court on the second trial.
But, in Page v. Skinner,
In Fidelity-Phenix Fire Ins. Co. v. Murphy,
Appellee's counsel properly and frankly admit that if this Murphy Case is adhered to, a reversal must follow. They insist, however, that it is opposed to the great weight of authority, is unsound in principle, and should be overruled.
If such rule is adhered to, counsel earnestly request this court to further define the probative effect of such evidence, what instructions the jury should be given in weighing such testimony, etc.
Appellant's counsel insist the Murphy Case should not only be followed so far as it goes, but that logically the court should hold the record of conviction conclusive of the issue in this case.
In view of the state of our decisions above reviewed, and the importance of the questions now presented, the writer has brought the matter before the full court for further consideration.
The Murphy Case was considered in division, both on original briefs, and on rehearing. The opinion concedes that most of the cases, fully reviewed in a series of notes in A.L.R., as well as text-writers, all cited in the decision, are opposed to those cases whose reasoning seemed conclusive to us.
The leading case in this country is that of Eagle, Star
British Dominions Ins. Co. v. Heller,
The Virginia court then proceeds to review a long array of cases, English and American, wherein the record of conviction for crime was admitted as evidence not merely of a judgment of conviction, where the fact of such judgment became pertinent, but evidence of the fact of commission of the crime for which he was convicted, when the same issue was presented in a civil suit.
In Schindler v. Royal Insurance Co.,
The rule of mutuality as between individual litigants as an essential element of res adjudicata is not to be questioned. Technically res adjudicata cannot be applied to the case at bar as held on former appeal.
Because of this, many courts, not adequately considering the rule of relevant evidence, and sound public policy in the administration of justice, have denied the admissibility of such evidence entirely.
As well noted by the New York court, following the English court, the prosecution for crime is conducted by the authority of the state, equally interested in the protection of the innocent and the punishment of the guilty, clothing the accused with a presumption of innocence, providing many safeguards against an unwarranted conviction, such as indictment by a grand jury, benefit of counsel, trial by a jury of his peers, compulsory process for his witnesses, the privilege of testifying in his own behalf, etc. A verdict expresses a conviction of guilt beyond a reasonable doubt.
Under the sanction of such judicial proceeding the state deprives the accused of his liberty; confines him in the penitentiary, or even imposes a death penalty.
To say all this is no evidence at all of his guilt when that exact issue is presented again in a civil suit, is to say the same tribunals which conduct such proceedings shall give them no probative force in civil actions on technical grounds of want of mutuality. To so hold is to discredit solemn judicial findings in the forum of their rendition.
Without further comment we adhere to the decision in the Murphy Case, supra.
What, then, is the probative effect of such record of conviction?
The Virginia case held it conclusive of the fact that such crime was committed by the party convicted. Any other view was regarded as a collateral attack on such judgment by a party thereto.
The New York and English courts, however, as well as many others reviewed in the Virginia case, declare such record "prima facie" or "presumptive" evidence of guilt when offered in the civil proceeding.
Since another party to a civil suit, in no way bound by the results of the prosecution is offering such record, the other party should not be entirely concluded and shut off from showing there was a miscarriage of justice in the criminal case. Else a further wrong touching property rights may be perpetrated.
Certainly, on a showing of perjury in the criminal case, or newly discovered trustworthy evidence, clearly proving the convicted person was in fact innocent, such conviction should not be binding in the civil suit.
But, it must be borne in mind, that the record of conviction is a solemn judicial finding, and should be clothed with a prima facie presumption of verity. Upon the introduction of such record, the burden of proof shifts to plaintiff on that issue.
The evidence to overcome such prima facie showing is not to be limited to an attack on the judgment of conviction on grounds of fraud or perjury, but all evidence tending to prove the innocence of the beneficiary in fact is to be admitted, and weighed under proper instructions from the court.
For the error in limiting the record of conviction as evidence to the question of credibility of the witness, the judgment is reversed.
Reversed and remanded.
All the Justices concur.