Honaker v. Howe

• Decision Date: 02 February 1869
• Parties: HONAKER v. HOWE.
• Court: Virginia Supreme Court

60 Va. 50

HONAKER v. HOWE.

Supreme Court of Appeals of Virginia.

February 2, 1869

1. At common law, if upon a prosecution for an assault and battery the defendant pleaded guilty, the record was competent evidence in a civil action for the same assault and battery to prove it.

2. But where the defendant, without pleading, throws himself upon the mercy of the court and submits to a fine, the record is not evidence in a civil action for the same act, to prove it.

3. In Virginia, where the defendant on an indictment for a misdemeanor, without pleading, confesses a judgment for a specific sum as a fine, the record is not evidence in a civil action for the same cause, to prove the fact. Nor is it evidence to enhance the damages.

This was an action of assault and battery in the Circuit court of the county of Pulaski, brought by Joseph H. Howe against Henry Honaker. The defendant pleaded not guilty, and son assault; on which issues were taken.

On the trial of the cause the plaintiff offered in evidence the record of an indictment in the Circuit court of Pulaski, in the name of the Commonwealth against the defendant, for an assault upon the plaintiff with an intent to kill him. To this indictment the defendant Honaker, without pleading in proper person, with the assent of the court, confessed a judgment for five dollars and the costs; upon which the court entered up a judgment. The defendant moved to exclude this evidence; but the court overruled the motion, and allowed the evidence to be introduced: and the defendant excepted.

The jury found a verdict for the plaintiff, and assessed his damages at one thousand dollars. The defendant thereupon moved the court for a new trial, on the grounds that the verdict was contrary to the evidence, and that the damages were excessive. But the court overruled the motion, and rendered judgment according to the verdict; and the defendant again excepted. This exception was not noticed in this court.

The case was taken to the District Court of Appeals at Abingdon where the judgment was affirmed. And Honaker then applied to a judge of this court for a supersedeas; which was awarded.

John W. Johnston, for the appellant.

Staples, for the appellee.

JOYNES J.

The only question raised in the argument here, and the only one we have to decide, is, whether the Circuit court erred in admitting as evidence for the plaintiff the record of the proceedings, upon an indictment against the defendant for the same assault and battery on which this action is founded. Upon that indictment the defendant, without filing any plea, came into court, according to a practice which is familiar in this State, and confessed a judgment for five dollars and the costs; the entry being as follows: " The defendant, in proper person, with the assent of the court, confessed a judgment for five dollars fine and the costs. Therefore it is considered by the court that the defendant forfeit and pay to the Commonwealth the fine aforesaid, besides her costs by her about her prosecution in this behalf expended."

It was very properly conceded in the argument, that the judgment upon an indictment for an assault, cannot, by reason of want of mutuality, be given in evidence in a civil action for the same assault, to establish as res adjudicata, the fact on which it was founded. But while such a judgment cannot be given in evidence as a judgment, yet when it is founded on the plea of guilty, the record is admissible in the civil action, because the plea of guilty was a direct and express confession of the truth of the charge, and the record is admissible to prove this confession. Upon such a plea, the entry, according to the old forms, is quod cognovit indictamentum. And it is laid down in many books, upon the authority of a case in the Year Book, 9 H. 6, 60 a, that such a direct and express confession on an indictment for a trespass, concludes the defendant, so that he cannot afterwards plead not guilty in a civil action brought against him for the same matter. Whether such an admission of guilt ought to be held conclusive on the defendant in a civil action, it is not necessary to enquire, but there is no doubt that it would be admissible evidence in such an action. And so it is contended, that the confession of judgment in this case was an admission of the facts charged in the indictment, and was on that ground admissible as evidence for the plaintiff in the present action.

There is another kind of confession known in the practice of criminal courts under the common law, which is spoken of as an implied confession. That is, where, in a case not capital, the defendant, without pleading guilty, or expressly confessing the truth of the indictment, throws himself on the mercy of the court, and desires to submit to a small fine. This request may be granted or refused by the court, as it may think proper. If the court grants the request, the entry on the record is not quod cognovit indictamentum, as in the case of an express confession, but quod non vult contendere cum domino rege, et se posuit in gratiam curiæ , and the defendant is not put to a more direct confession. 1 Chit. Cr. Law 431. The effect of such an implied confession is not the same as that of a direct and express confession by the plea of guilty. Thus, in the case before referred to from the Year Book, it was held that the defendant will not be concluded by such an implied confession from pleading not guilty in a civil action founded on the same fact, as it was held he will be by an express confession. But it is material to enquire whether this proceeding on the part of a defendant involves such a confession of the truth of the charge made in the indictment, as to make it admissible at all as evidence against him in a civil action.

The essential difference between the effect of a direct or express confession, and that of a confession implied upon a nolo contendere, seems to be clearly marked by the difference in the form of the entry. The direct confession is an acknowledgment of the fact charged in the indictment, and accordingly the entry is cognovit indictamentum. No such entry is made upon the plea of nolo contendere, which indicates that it is not understood as an acknowledgment of the fact charged. The entry in such a case imports merely, that the defendant is willing and desirous if the court will allow it, to pay a small fine in order to get rid of the prosecution. Such a proceeding on the part of the defendant implies a confession " in a manner," as Hawkins says, of the truth of the charge. But it is, strictly speaking, only an agreement on the part of the defendant, that the fact charged may be considered as true for the purposes of the case, but for them only. Being unwilling to confess the truth of the charge, he will not plead...