
    Corwin, Respondent, vs. Walton, Appellant.
    1. In a civil action of assault and battery, the record of an indictment for the same offence to which the defendant pleaded guilty, is admissible evidence.
    2. In a civil action of assault and battery, the plaintiff may recover exemplary damages, notwithstanding the defendant has been convicted and fined, in a criminal .prosecution for the same offence.
    
      •Appeal from St. Louis Court of Common Pleas.
    
    Tnis was a civil action brought by William E. Corwin against Charles D. Walton, to recover damages for an assault and battery. At tbe trial, tbe plaintiff gave evidence tending to show an aggravated assault upon him by tbe defendant, from which be suffered serious injury. Tbe plaintiff also offered in evidence a record of proceedings by indictment against tbe defendant for tbe same assault, for tbe purpose of showing that tbe defendant had pleaded guilty to one of tbe counts in the indictment. At tbe request of tbe defendant, tbe sentence and judgment of tbe court on tbe indictment were also read, showing that tbe defendant was fined $500 upon bis plea of “ guilty.” Tbe plaintiff then offered to read in evidence a pardon from tbe governor of tbe state, remitting said fine, which was excluded by tbe court. Tbe court directed tbe jury that, in addition to actual damages, they might assess smart money or vindictive damages, if they found the defendant guilty of the assault.
    
      Todd & Krum, for appellant,
    insisted that exemplary damages were only given as a penalty for the wrong supposed to have been done to the public, and as by plaintiff’s own showing the state had redressed its own wrong, he could only recover for actual damages. The pardon does not make any difference. The remission of the fine was a forgiveness of the public wrong.
    C. B. Lord, for respondent.
    In an action of assault and battery, the plaintiff may recover exemplary damages. Sedg-wick on Measure of Damages, 622, and cases there cited ; also pp. 38, 89. Merest v. Harvey, 5 Taunt. 442. Churchill v. Watson, 5 Day, 140. Huclele v. Money, 2 Wils. 205. Woert v. Jenkins, 14 Johns. 351. Wilkins v. Gilmore, 2 Humphreys, 140. 7 Ala. 349. 4 Dev. & Bait.' 246. Jennings v. Maddox, 8 B. Monroe, 430. McNamara v. King, 2 Gilman, (Ill.) Rep. 432. Milhurn v. Beach & Eddy, 14 Mo. 104. Greenleaf on Ev. p. 220, §267. 2 Phillips, 189. Starkie, 495, 812. The conviction and fine in the Criminal Court do not prevent the recovery of exemplary damages. Cook v, Ellis, 6 Hill (N. T.) Rep. 466, and cases there cited. ° Jefferson v. Adams, 4 Harrington (Del.) Rep. 321. If the conviction and fine in the Criminal Court is a bar to the recovery of exemplary damages, it must be because the defendant has already suffered punishment; and the plaintiff offered the pardon in evidence to show that the defendant has suffered nothing.
   Scott, Judge,

delivered the opinion of the court.

1. The plea of guilty having been entered on the record in the case of the State against the present defendant, on an indictment for the same offence, that record was evidence in the present action. 2 Taylor on Evidence, 1115.

2. When an individual carried on a criminal prosecution and a civil action for the same offence, courts have held him to his election, and would not compel a defendant to discover the matter of his defence and evidence, unless the prosecutor would give up the right which he might otherwise have to make use of this very discovery against the defendant, in his civil action, which would be giving him a most unfair and unreasonable advantage. Rex v. Fielding, 2 Burr. 719. But this interference was only with the criminal prosecution ; the courts did not assume any authority to stay or arrest in any way the private actions of individuals. Jones v. Clay, 1 Bos. & Pul. 191. In assessing the punishment, the courts would regard the fact, that the person injured had recovered exemplary damages for the wrong done, and so the jury, who, by statute, have succeeded to the power of courts in assessing the punishment after a conviction, would be influenced in determining the degree of punishment, by the fact that the party wronged had recovered vindictive damages for the same injury.

It would appear, then, that the damages of the party aggrieved in his action for the wrong done him, were not liable to be affected by any thing done in the public prosecution. ( Th%/lMrpdMwJt' punishment inflicted may be affected by the verdict in the civil {fjuu ¿y- ~ action, but the damages to be recovered in the private suit are t-ttth wholly uninfluenced by any thing that may have transpired in , the prosecution carried on by the state.\ This being so, it was finis** not a matter of any consequence from which side the proof of • ^ | the conviction and fine proceeded. The plaintiff was entitled ’ to exemplary damages, notwithstanding he produced such evi- (sf/Wt Affirmed, the other judges content. dence himself.  