65 Vt. 196 | Vt. | 1892
This was an information for keeping and
It was conceded at the trial that the place mentioned in the information was a place of public resort of which the respondent was the proprietor and keeper, and the State’s evidence tended to show that intoxicating liquor was kept by the respondent at the time and place charged, with the intent to sell, furnish, or give away the same in violation of law, so as to render the place a common nuisance under the section mentioned.
The respondent’s counsel offered to prove that the respondent had been tried and acquitted on the charge of keeping the identical liquor with intent to sell, etc., and claimed that the fact of keeping was res judicata.
The State conceded the facts to be as stated in the offer, but claimed that the offences were not the same in law, but separate and distinct, and that an acquittal or conviction of one was not a bar to a prosecution for the other.
The respondent’s counsel does not claim that a conviction or acquittal upon an information for keeping or selling intoxicating liquor is a bar to a prosecution for keeping or maintaining a nuisance, but that a judgment of another court upon the question whether this identical liquor upon this identical occasion was kept for sale was competent evidence, and was either conclusive or tended to show that it was not so kept as alleged in this information.
The State’s attorney relies upon State v. Lincoln, 50 Vt. 644, State v. Fangraw, 61 Vt. 39, and State v. Wheeler,
The other cases were decided upon the same ground. In each of them a plea of a former acquittal or a former conviction of a different statutory offence was interposed, and was held insufficient.
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. See cases cited in respondent’s brief;
Exceptions sustained, sentence vacated, judgment reversed and cause remanded.