State v. Morrow

Petition for" rehearing denied March 1, 1938

On Petition por Rehearing

( 76 P. (2d) 971 )

ROSSMAN, J.

The defendant’s petition for a rehearing presents two contentions: (1) if the filiation proceeding judgment was not admissible as a plea of former jeopardy, or as

res ad judicata

and therefore a bar, yet it was

prima facie

evidence of the defendant’s innocence and should have been received; and (2) the fact that L. L. Low, sheriff of Klamath county, was permitted to answer yes to a question concerning the general reputation of the prosecutrix should have been deemed by us reversible error.

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In support of the first of these two contentions, the defendant cites

Eagle, Star & British Dominions Insurance Co. v. Heller,

149 Va. 82 ( 140 S. E. 314 57 A. L. R. 490), and

Schindler v. Royal Insurance Co.,

258 N. Y. 310 ( 179 N. E. 711 , 80 A. L. R. 1142). Each of these was an action upon a fire insurance policy which named the plaintiff as the insured. In each instance the civil action had been preceded by a criminal action in which the plaintiff, as the defendant, had been convicted. In the Virginia case he was found guilty of willfully burning the property mentioned in the policy of insurance with intention of injuring the company. In the New York case he was found guilty of presenting to the insurance company false and fraudulent proof of loss. In the Virginia case the court held that the judgment of conviction was admissible in evidence as an absolute bar to the plaintiff maintaining the civil action. The New York decision held that the judgment of conviction was admissible for its probative value, but not as a bar. It was deemed presumptive proof of the commission of the crime.

It will be observed that each of these decisions was concerned with a judgment of conviction. Our court has twice spoken concerning the admissibility of a judgment of guilt entered upon a plea of guilty:

Spain v. Oregon Washington R. & N. Co.,

78 Or. 355 ( 153 P. 470 , Ann. Cas. 1917E 1104);

Meyers v. Dillon,

39 Or. 581 ( 65 P. 867 , 66 P. 814 ); and in

McLean v. Sanders,

143 Or. 524 ( 23 P. (2d) 321 ), recognized a broader rule. In it the judgment of guilt was entered, not upon a plea of guilty but after trial. In the first two Oregon decisions the judgment of guilt, although based upon a plea of guilty, was held merely probative; in the third it was held to be a bar.

*438

The Virginia and New York decisions declared that the rule which they were embracing represented the minority view. They supported it, however, with excellent reasoning, and the many reviews which have appeared in legal periodicals acclaim it as sound. Those decisions were concerned with judgments of guilt entered after trial.

We did not discuss the above rule in our previous decision because the instant case is not concerned with a criminal judgment of guilt — it is concerned with a judgment of not guilty entered in a civil proceeding. The very courts which hold a judgment of guilt admissible recognize that a judgment of acquittal is merely a determination that guilt has not been established, and point out that it is not necessarily a finding that guilt might not exist. Nothing said in the decisions cited by the defendant deems admissible the judgment in the filiation proceeding; in fact, both decisions are opposed to its admissibility.

Baltimore Steamship Co. v. Phillips,

274 U. S. 316 ( 71 L. Ed. 1069 , 47 S. Ct. 600 ), also cited by the defendant, contains nothing applicable to the case before us.

We are satisfied that the record does not indicate error concerning Low’s testimony.

The petition for a rehearing is denied.

Bean, C. J., and Kelly and Belt, JJ., concur.