
    Commonwealth vs. Sewell P. Ellis.
    Bristol.
    October 24, 1893.
    November 28, 1893.
    Present: Field, C. J., Allen, Holmes, Knowlton, & Lathrop, JJ.
    
      Neglect of Father to support Minor Child — Defence of Illegitimacy of Child,— Effect of Record of former Conviction — Estoppel.
    
    The record of the conviction and sentence of a father upon a complaint, under the St. of 1885,c. 176, for unreasonably neglecting to support his minor child, is conclusive evidence that the paternity of the child was determined, and the father is estopped to set up the illegitimacy of the child as a defence to a subsequent complaint under the same statute for a similar offence.
   Lathrop, J.

This is a complaint, under the St. of 1885, c. 176, charging the defendant with the offence of unreasonably neglecting to provide for the support of his minor child. At the trial in the Superior Court, the defence was that the child was not the child of the defendant, but was a bastard child of the defendant’s wife. To meet this defence, the government put in evidence a record of the Second District Court of Bristol, showing a prior conviction and sentence of the defendant, under the same statute, for unreasonably neglecting to support the same child. The presiding justice ruled, as matter of law, that the record of the conviction and sentence was conclusive evidence that the paternity of the child was determined, and that the defendant was estopped to set up the illegitimacy of the child as a defence. The correctness of this ruling is the only question before us.

The question of the paternity of the child was necessarily involved in the prior conviction of the defendant. That fact having been determined, it cannot again be litigated between the same parties unless a different rule applies to criminal proceedings from that which obtains in civil proceedings. See Sly v. Hunt, 159 Mass. 151, and cases cited. It is well settled that the rule is the same in both classes of cases. Thus, in Commonwealth v. Evans, 101 Mass. 25, it was held, on the trial of an indictment for manslaughter, that the record of a conviction of the defendant for the assault which caused the death was conclusive evidence that the assault was unjustifiable. So in Commonwealth v. Feldman, 131 Mass. 588, where the defendant was indicted for an assault upon a public officer, committed while the defendant was under arrest for drunkenness, it was held that a record of his conviction and sentence for drunkenness at the time of his arrest was conclusive evidence of that fact.

A. E. Bragg, for the defendant.

II. M. Knowlton, District Attorney, for the Commonwealth.

Exceptions overruled.  