
    * James Clark and others v. William Irvin.
    A verdict is not amendable by the Supreme Court as. a court of errors. Neither a plea of guilty in a criminal prosecution, nor the judgment founded upon it, are conclusive against the defendant in a civil action.
    Such plea stands like any other confession of. a party, and may be controverted.
    Error to the common pleas of Perry. Irvin sued James, Felix, and J. J. Clark, in the court below, for assault and battery. J. J. Clark pleaded not guilty ; the other two pleaded separately son assault demesne, on which issue was taken. During the trial before a j ury, the plaintiff introduced a transcript of the proceedings before a justice upon a criminal complaint for the same assault and battery, in which J. J. Clark pleaded guilty. The court instructed the jury that this plea of guilty wa's conclusive of the guilt of J. J. Clark, and estopped him from proving the contrary. The jury returned a general verdict of guilty. An exception was taken to this charge, and judgment rendered for the plaintiff, to reverse which this writ is brought.
    W. W. Irvin and T. Ewing, for plaintiffs in error, contended:
    1. That the jury did not pass upon all the issues, and the judgment as to two other defendants was without any finding and must be reversed. They relied upon Hanly v. Levin, 5 Oh o, 227. 2. As the judgment is entire, it must be reversed in toto, if in part. 2 Tidd. P. 1236 ; 2 Esp. N. P. 185; 1 Esp. 158 ; 3 Bac. Ab. Error M. 115, 16 ; 11 Wend. 91 ; 8 Cow. 406, The court has no power to amend under the act 33 O. L. 55. But 3. The court erred in stating the plea of guilty conclusive ; it is but an admission, and to go in evidence only as other adnrssions. 1 Stark. Ev. 234, 284; Bul. N. P. 232 ; Gibb. Ev 30 ; 4 M. & Sel. 476 ; 12 Mod. 339 ; 2 Stark. Ev. 812 ; 4 T.R. 255 ; 1 Phil. Ev. 283 ; 8 Wend. 440. And 4. If an estoppel, it should have been replied specially. Co. Lit. 226; 3 East. 354; 2 Car. & P. R. 148 2 Barn & Ald. 662.
    H. Stanberry and H. II. Hunter, contra.
    Hanly v. Levin, 5 Ohio, 230, only proved that before the acts of assembly, 32 O. L 20 and 33 O. L. 55, the court had not the power to amend such a verdict. The only real question is whether the verdict substantially finds the issues ; if so, the court may now mould it into form. On principle, in actions of this kind, the judgment may be affirmed in part and reversed in part. Dunl. Pr. 492 ; 1 Stra. 532 : 7 T. R. 469 ; 1 Saund. *109. n. 1. A plea of guilty judicially made upon a •criminal accusation is conclusive. 1 Phil. Ev. 259 ; 14 Mass. 48.
   By the Court,

G-rimke, Judge.

The verdict in the case below was ■a general one of not guilty. The jury did not pass upon the issues joined by two of the defendants. 1 his has heretofore been held a sufficient ground for reversing the judgment, 5 Ohio, 227 ; and the question is, whether under the provision of our two late statutes, this court can amend the defect. The act. of the 8th of March, 1831 permits amendments before writ of error sued out. That of the 25th of Feb. 1834, authorizes the court after writ of error to amend defects in the process or pleading. A verdict can not by any construction be considered as either process or pleading; and so this case is not within the provisions of that act. By the still later act of March 9, 1835, the courts are authorized before writ error brought to amend such formal defects as are not pointed out in a special demurrer; and even after writ error to amend a judgment or other proceeding. The first part of this section only authorizes amendments to be made where the defect is not relied upon on special demurrer. A defect in a verdict can not be the subject of demurrer, and so thatprovision does not embrace the case before us. Is it comprehended in the latter clause ? That, like the act of 1834, permits amendments after writ of error, only it is broader in its terms, using the words judgment or other proceedings ; but the section contains this language also, and yet, as has been before said, a verdict can not be considered as within its scope. The truth is, a verdict does not come witbin any of our statutes of amendment. The court is there Jert to exercise the power which it derives from the common law. And there is a peculiar fitness in that power being exercised only by the court who tried the cause. No other tribunal can kuow the facts which will authorize the amendment.

In (he coarse of the trial, the plaintiff introduced a transcript of the docket of the justice of the peace, showing that a criminal prosecution had been commenced against J. J. Clark, (who had now pleaded not guilty), and that upon that trial he had pleaded guilty. The court below charged the jury that said Clark was estopped, and that the proceedings before the justice were conclusive of his guilt. There is an authority to this effect from the most ancient book of reports which we have referred to in Phil. Ev. 259, but it is at war with the whole current of modern decisions. The record in the original prosecution not being between the same parties, can not be conclusive in *the civil action, and the plea, considered by itself, only amounts to a confession, •which can not have any higher effect than would the record which is founded upon it.

This judgment is, therefore, erroneous as to all the defendants, which renders it unnecessary to decide, whether, if it should be reversed as to some, it must be reversed as to all. 8 Cow. 406 ; 11 Wend. 91.

Judgment reversed.  