
    A RECORD OF CONVICTION NOT ADMISSIBLE IN A CIVIL ACTION.
    Common Pleas Court of Hamilton County.
    Abrahams v. Beaman, Aud.
    Decided April 23, 1926.
    
      Evidence — Record of Conviction in a Mayor’s Court — Not Competent in Establishing Liability for a Tax on Traffic in Intoxicating Liquors.
    
    An adjudication in a criminal prosecution, with the possible exception of a case where a plea of guilty was entered, is'inadmissible in a subsequent civil action, involving the same wrong, notwithstanding the parties are the same.
    
      Frank E. Wood and Edgar M. Powers, for plaintiff.
    
      Sylvester Hickey, for defendant.
   Darby, J.

By this action the plaintiff seeks to enjoin the defendants from levying an assessment in the form of a tax upon “the business of trafficking in spiritous, vinous, malt or other intoxicating liquors” as provided by G. C., Section 6071. The answer of the defendants admits the placing of the assessment against the plaintiff, and denies all other allegations of the petition.

The case came on for trial, and plaintiff offered evidence tending to show that he was not at the time covered by the assessment, engaged in the business referred to, and rested his case. Thereupon the defendants offered in evidence the record of the mayor of the village of Milford, showing that the plaintiff was, on July 28, 1921, convicted by said mayor of the offense of being the keeper of a place where intoxicating liquors were sold, in violation of Section 13195, of the General Code.

Objection to this evidence was made by the plaintiff, on the ground that it was irrelevant and immaterial. Inasmuch as there was disagreement among the judges of this court as to whether such evidence was relevant, the court determined to reserve decision until the conclusion of all the evidence. Thereupon the plaintiff, in rebuttal offered in evidence transcript of the record of the municipal court of Cincinnati in an action in which the plaintiff was prosecuted for unlawfully having possession of intoxicating liquor, and was acquitted on that charge. Upon objection by the defendants to such testimony, the court reserved ruling until final determination.

It is admitted, and the records show-, that the assessment which is here sought to be enjoined is based upon no testimony or transaction other than the alleged'unlawful possession which was the subject of prosecution in the municipal court, and the keeping of the place where intoxicating liquors were sold, which was the subject of the prosecution before the mayor of Milford. The prosecution in the municipal court for the unlawful possession, which resulted in acquittal of the plaintiff, preceded the action in the mayor’s court at Milford for the keeping of the place, in which the defendant was convicted. Emphasis is laid upon the fact that he was acquitted in one court, of one charge, and convicted in the other court upon the other charge, where the evidence as to both related to one and the same transaction.

It should be noted that the defendants do not- in their answer set up the conviction before the mayor of Milford as a bar to this action; what defendants' do is to offer evidence of conviction in that case as the only evidence that the plaintiff was engaged in “the business of traificking in spiritous * * * liquors.”

In a well considered case by former Judge Matthews of this court, namely, Huer v. Huwe, Treasurer, it was held:

“The annotation above referred to shows that the overwhelming weight of the authorities sustains the position of plaintiff’s counsel that an adjudication in a criminal case is inadmissible in a subsequent civil action, even between the same parties. Independent investigation discloses that the annotation correctly set forth the state of the law. It cannot therefore he held that the issue of whether or not the plaintiff conducted the business of trafficking in intoxicating liquors is res judicata.”

In the last mentioned case the facts were very similar to those in the case at bar, but it also appears that the plaintiff had entered a plea of guilty of one of the charges against him.

In this case there was no plea of guilty, and the question is plainly put as to whether or not evidence of his conviction before the mayor of Milford was admissible against him.

The cases referred to by Judge Matthews sustain the position that an acquittal in a criminal action is not a bar to a subsequent civil action for the same wrong.

The most satisfactory statement of the law that has been called to the attention of the court is found in Adams v. Sigman, 89 Miss., 844, where the facts were almost identical with the facts in the case at bar. That was an action to recover statutory penalty prescribed for unlawful sales of intoxicants; to support the plaintiff’s claim the record of defendant’s prior conviction of the illegal sale of the intoxicants was offered in evidence, but was rejected by the trial court, and the supreme court sustained that holding. In the course of the opinion the court say, see p. 848:

“The question was whether defendant had violated Section 159 of the Annotated Code of 1892 (Code 1906, Section 1744) and not whether he had been convicted or acquitted of a violation of a criminal charge. If the statute had made it prerequisite to the civil action that there would be a previous criminal conviction, then the record of it should have been competent, but even- in that case- only to show the necessary pre-requisite fact of conviction. The only exception — and it is not an exception to the rule of non-mutuality of civil and criminal trials— is where there is a plea of guilty, and even in such case it is not conclusive on defendant and is received only on the basis of any other admission in or out of court.”

Other cases referred to by Judge Matthews in his opinion are noted in 21 Am. & Eng. Ann. Cas., 1182, et seq.

The court has reached the conclusion that the record of the mayor’s court was not relevant in this case. However, if the court is in error in its conclusion as to the relevancy of such record, and if it is to be considered, this situation is presented: The municipal court having competent jurisdiction of the matter found that the plaintiff was not guilty of possession of liquor. The mayor’s court having jurisdiction of the charge, found that the defendant was guilty of keeping a place where intoxicating liquors were sold, but the identical liquors and the identical sale involved in the latter case were involved in the former case. It was within the jurisdiction of each court to render the decision it rendered. Whether the conclusion reached in either case was right or wrong seems to be aside from the question for the purpose of this case. If the record of the mayor’s court is relevant, then it seems equally true that the record of the municipal court is relevant and the matter then, upon all the evidence, becomes one of the weight of the evidence. The plaintiff in the case offered independent evidence that he was not engaged in trafficking in intoxicating liquors; there Was no effort to meet this evidence except by the record of the mayor. Weighing the evidence the court has reached the conclusion that the preponderance of evidence is with the plaintiff.

It follows therefore, that the plaintiff is entitled to a. permanent injunction from whichever position the case is approached.  