People v. Buckland — 13 Wend. 592

Majority

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The People vs. Buckland.

NEW YORK,

May, 1835.

Headnote

A party indicted for compounding a larceny, and agreeing to withhold evidence, cannot plead the acquittal of the person charged with the larceny in bar of his own conviction.

In the case of principal and accessary, the acquittal oí the princi pal it seems would be admissible evidence in defence of the accessary,though it would not be conclusive in bar of a conviction; but in the case of an indictment for compounding a crime and agreeing to withhold evidence, the acquittal of the principal offender would not be competent evidence in defence.

Error from the Monroe general sessions. The defendant was indicted for compounding a larceny alleged to have been committed by one Jane Hart, in stealing goods and chattels, the property of the defendant Buckland. The indictment contains three counts: in the first it is charged that the defendant compounded the offence,arid received $25 asa reward for the same, and for desisting from the prosecution of the offender, and that he accordingly did desist, «fee. The second count charges that he received $25 as a reward for concealing the offence, and that he did conceal, «fee. And the third count charges that he received $25 as a reward for withholding evidence of the offence, and that he did withhold such evidence,

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&c. The defendant pleaded specially that Jane Hart had been indicted for the offence specified in the indictment against the defendant, and had been tried and acquitted, wherefore he prayed judgment, «fee. To this plea the district attorney of Monroe demurred, and the defendant joined in demurrer. The general sessions adjudged the plea bad. The defendant sued out a writ of error.

J. A. Spencer,

for the defendant, insisted that the plea of the acquittal of the person charged to have committed the larceny, was a bar to the indictment. At common law, the principal must be tried before the accessary, and though our statute has altered the rule in this respect, so that an accessary maybe tried before the principal,yetif th ¡¿principal is first tried and acquitted, it is impossible that the accessary can be convicted. If no larceny was perpetrated, the offence ofcompounding the crime cannot have been committed. The record of acquittal is as conclusive as a record of conviction, 3 Wheat. 316 ,and the record is conclusive in this case upon the people, for they were parties to it. The counsel cited and commented upon the following cases : 2 Hawk. 439, 40; 1 Phil. Ev. 247, 229 ; 14 Johns. R. 79 ; 2 Chittiy's Cr. L. 220; 3 Esp. N. P. C. 133; 1 Starkie’s Ev. 224; Archb. Cr. L. 376.

Greene C. Bronson,

(attorney-general,)for the people. The rule of the common law, that a principal must be tried before the accessary, is not applicable to this case; and even that rule is only that the principal shall be first tried—not convicted. The very nature of the case shows that the conviction of the principal cannot be necessary to the conviction of the accessary, as the failure to convict may have been the direct result of the offence of compounding. Allowing- the record of acquittal to be admissible evidence, it is not conclusive; for it would not prevent the public prosecutor,on the trial of the defendant to show,notwithstanding the acquittal,that a crime had in fact been committed. The acquittal is mere matter of evidence, which may be rebutted, and therefore cannotbe pleaded in bar. The record of acquittal is not conclusive ; it is not between the

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same parties; it is not mutual. The conviction of the principal offender would not be conclusive upon the present defendant; he might notwithstanding show that no offence had been commhted ; and if so, the acquittal should not be conclusive upon the people. In 18 Johns. R. 352, the court received a record of conviction in support of a plea of justification in an action of slander,but they allowed the plaintiff,notwithstanding the record, to show that he had been erroneously convicted.

By the Court,

The plea is clearly bad. The record of acquittal of Jane Hart, if evidence at. all for the defendant,was not conclusive ; it was at most but prima facie evidence, and liable to be rebutted. It could not, therefore, be pleaded in bar. The general rule is, that verdicts and records bind only parties and privies; that they are not admissible in evidence against a stranger, who was no.party to the former proceedings, who had no opportunity to examine witnesses or to appeal against the judgment. They must also be mutual. No person can use a verdict or judgment, for his advantage, against whom it could not. have been evidence, had it gone the other way, 1 Phil. Ev. 245, 247, 250; and if it would have been only prima facie evidence,if against him it cannot be conclusive when in his favor. Rep. temp. Holt, 134Bull.N. P. 233. Gilb. Ev. 232 ; Peake’s Ev.38. Dutchess of Kingston’s case,11 State Trials, 198. Case v. Reeve and others,14 Johns. R.79. 4 Cowen, 458. There are many exceptions to this general rule, relating however principally to matters of public right, such as a right to toll, a customary right of common, or a public right of way, &c. 1 Phil. Ex. 253.1 East, 357. 5 T. R. 413.1 East, 355. Peake’s N. P. C. 219, 156. 1 Dougl. 222. On such questions, a verdict between A. and B. is evidence of the point directly involved in it, and determined by it, in an action between other parties, where the same precise point is the matter in issue ; but in such a case the verdict and judgment are not conclusive, but mere matter of evidence. Biddulph v. Ather, 2 Wils. 23,4. Cowper, 111.

Upon an indictment against an an accessary,a record of conviction for felony against the principal is admissible evidence

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to show that the felony has been committed; but it is conclusive against the accessary, because as to him it is i'es enta alios acta. Foster’s Dise. 364,5. 3 Campb.235. 1 Leach’s C. C. 288. 1 Phil. Ev. 248. And it is competent for the accessary, notwithstanding the conviction, to prove the principal innocent. Cook v. Field, 3 Esp. N. P. C. 134. This subject was considered by this court in Maybee v. Avery, 18 Johns. R. 352. That was an action of slander. The words laid in the declaration were, “ You are a thief, you stole my hens.” The defendant pleaded the general issue, with notice of special matter, justifying the truth of the charge; and upon the trial,he producedarecordof convictionbefore three justices of the peace, at a court of special sessions, by which it appeared that the defendant was convicted before them of stealing two hens of the defendant, and was fined $7. The evidence was objected to as incompetent, but it was admitted by Chief Justice Spencer, who tried the cause. The plaintiff then offered to show that the evidence on which he was convicted was false, and that he in fact owned the two hens. This was objected to on the ground that the record of conviction was conclusive until reversed. The objection was sustained, and the evidence rejected. Upon a motion for a new trial, on a case made,it was held that the record of conviction was admissible in evidence, but that it was only prima facie, and that the plaintiff should have been allowed to disprove the fact, and to give evidence of the falsity of the testimony on which the conviction was found -d. The opinion of the court was delivered by Judge Spencer; and after stating the general rule, that in order to render a verdict and judgment competent evidsneytmust be on the same point, and between the same parties or privies,and give the reason on which the rule is founded, he adverts to the exception to the rule which has already been noticed, to wit, that where the matter in dispute is a question of public right, all persons standing in the same situation as the parlies are affected by it; and he remarked, that in ids opinion a verdict on an indictment formed another exception and upon the same principle. That the public was the party aggrieved, the prosecution was carried on by their officer, and that any person might, when necessary,avail himself

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of a conviction. He observed that the plaintiff in that case could not complain,for he hadan opportunity to cross-examine the witnesses, and to produce his testimony,and to reverse the judgment if erroneous ; but that the verdict was not conclusive, and the plaintiff should have been allowed to repel it. This case only decides that a verdict and judgment, on an indictment, are competent prima facie evidence against the defendant in the indictment. ButtheprinciplelaiddownbyJudge Spencer makes them competent evidence upon the point involved, even between strangers to the original proceedings ; and this I am inclined to think is the true rule. Mr. Justice Buffer takes a distinction between the effect of a conviction and of an acquittal, as evidence of the fact involved in the issue, if it afterwards comes collaterally, in controversy in a court of civil jurisdiction. He says'a conviction in such a case would be conclusive evidence, but an acquittal would not,for an acquittal ascertains no fact as a conviction does. Judge Story,in Gelston v. Hoyt, 3 Wheat. 316 ,questions the solidity of this distinction; and it certainly seems to conflict with the principle that the rule of evidence must be reciprocal; and of course, if a conviction would be conclusive evidence in favor of the party using it, an acquittal should be equally conclusive against him. Judge Spencer in Maybee v. Avery,above cited, quotes the observation of Buffer, but does not express any opinion as to its correctness. Nor is it necessary in this case for me to go into a consideration of the question. It is clear that the acquittal pleaded in this case was at most but prima facie evidence,and that it therefore could notbe pleaded in bar.

But I am inclined to think that,under the circumstances of this case, the acquittal was not competent evidence at all for the defendant. The third count of the indictment alleges that the defendant exacted and received $25 as a reward for withholding evidence of the offence so committed by the said Jane Hart,and that he did and hithertoffiath witheld such evidence. For the purposes of this case,the truth of this allegation is admitted. The defendant then seeks to avail himself of an acquittal which was or may have been produced by his own criminal act,in order to protect himself against a criminal prosecution for such offence. It faffs within the principle,that

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a conviction cannot be given in evidence by a party who was a witness in the prosecution ; for it is impossible to say what influence his testimony had in producing the verdict. 18 Johns. R. 354. 1 Phil. Ev. 259, 60.

Judgment affirmed.