
    7300
    STATE v. WEIL.
    Evidence — Judgment.-—In a criminal prosecution the record of a judgment in the equity jurisdiction of this Court, based on ex parte affidavits and failure of defendant to answer, is not admissible against accused as evidence of the facts stated therein.
    Before Gage, J., Richland, September, 1908.
    Reversed.
    Indictment against Louis Weil. From Circuit judgment, defendant appeals.
    
      Messrs. Pringle T. Youmans and G. Duncan B.ellinger, for appellant.
    
      Mr. Youmans cites: Accused must be confronted with witnesses against him: 12 Cyc., 543, 544. Mr. Bellinger cites: The affidavits and judgment should not have been admitted: 76 S. C., 336; 48 S, C„ 4; 156 U. S., 242; 1 Rich., 124; 2 Hill, 607; 32 S-. C., 392; 178 U. S., 458; 174 U. S., 61.
    
      Solicitor W. Hampton Cobb, contra,
    cites: Record of judicial proceedings are admissible to prove the facts, etc., therein stated: 9 Ency., 882; 1 Whar. Ev., 836; 1 Green., 527a; Whar. Cr. Ev., sec. 570; 1 Whar. Law'of Ev., 819 ; 2 N. & McC., 264; 2 Bay, 151.
    October 5, 1909.
   The opinion of the Court was delivered by

'Mr. ChiEE Justice Jones.

The defendant was convicted and sentenced under an indictment charging him with selling whiskey, with maintaining a nuisance by keeping a place where alcoholic liquors were kept for sale, were sold, and where persons were permitted to resort for the purpose of drinking alcoholic liquors, and for unlawfully storing and keeping in possession contraband liquors.

Over objection the Court permitted the solicitor to introduce in evidence the record of the Supreme Court in the case of The State, ex rel. the Attorney General, petitioner. v. Louis Weil and L. B. Owens, respondents, consisting of the petition for injunction to restrain a nuisance, in violation of the dispensary law, the affidavits upon-which it was based, and the order of the Court perpetually restraining the said defendant from using the building, situated at No. 931 Gervais street, Columbia, S. C., as a place where alcoholic liquors are sold, or dispensed, and from using said premises as a place where persons are permitted to resort for the purpose of drinking alcoholic liquors, and from selling or dispensing alcoholic liquors.

The order for judgment was dated May 26, 1908, and the affidavits in support covered practically the same period embraced in the indictment. The defendant did not appear in the said proceedings, and the order of the Court recites that no answer or return has been filed and no cause shown why the injunction should not issue.

The appeal presents the question whether it was error to admit the record in evidence.

We think there was error. The general 'rule is that a judgment in a civil action can not be given in evidence in a criminal action to establish the facts on which it was rendered. 1 Greenleaf (7 ed.), sec. 537; 24 Ency. Law (2 ed.), 831; 2 Black on Judg., sec. 529; Riker v. Hooper, 35 Vt., 457, 82 Am. Dec., 647; Stone v. U. S., 17 Sup. Ct. Rep., 778; Frierson v. Jenkins, 72 S. C., 342, 51 S. E., 862.

The proceedings to enjoin the nuisance were entertained by the Supreme Court in its original equitable jurisdiction. State v. Riddock & Byrnes, 78 S. C., 286, 58 S. E., 803. The evidence upon which the judgment was rendered consisted of ex parte affidavits and the failure of-the respondent in that proceeding to appear and answer. If such a judgment should be held as the basis of res judicata, or estoppel, in a subsequent criminal prosecution, the practical effect would be to annul the rule that in criminal prosecutions the State must establish the defendant’s guilt beyond a reasonable doubt before a jury.

The rule that a record of judicial proceedings is admissible to prove the fact, time, term and effect of the judgment means when the existence of the judgment is relevant, as, for example, when the law requires conviction of the principal as a condition precedent to conviction of the accessory, or where the prior judgment constitutes legal aggravation of the subsequent charge, or in some instances to show a series of crime. Other illustrations might be given, but the present case does not fall within the rule. A judgment is sometimes admitted as evidence of an admission, as when the defendant pleads guilty, or makes a solemn admission on the record, in which case it is governed by the law applicable to admissions or confessions, and affords prima facie evidence of the fact admitted in. a subsequent trial involving such fact. “But in order to bring such admission home to him the pleading must be either signed by him, or it must appear that it was within the scope of the attorney’s authority to admit such facts.” Wharton Crim. Ev., sec. 615. In the case at bar there was no such admission on the record.

Under art. I, sec. 18 of the Constitution, the accused has the right to be confronted with the witnesses against him. The object of this provision was to prevent the use of affidavits or ex parte depositions against a prisoner in lieu of a personal examination of the witness in the presence of the prisoner and subject to his right of cross-examination. Mattox v. U. S., 156 U. S., 242. While this provision is not violated by the introduction of proper documentary evidence, it is violated when the effect of the admission of improper documents or records may be to furnish testimony against the prisoner by means of ex parte affidavits. Since the affidavits were admitted as a part of the record, it is reasonable to assume that the contents thereof were laid before the jury. Hence, the admission of the record was prejudicial.

The judgment of the Circuit Court is reversed and the case remanded for a new trial.  