Interstate Dry Goods Stores v. Williamson

• Decision Date: 09 May 1922
• Docket Number: 4481.
• Citation: 112 S.E. 301,91 W.Va. 156
• Parties: INTERSTATE DRY GOODS STORES v. WILLIAMSON.
• Court: West Virginia Supreme Court

112 S.E. 301

91 W.Va. 156

INTERSTATE DRY GOODS STORES v. WILLIAMSON.

No. 4481.

Supreme Court of Appeals of West Virginia.

May 9, 1922

Submitted May 2, 1922.

Syllabus by the Court.

In a civil suit to recover the value of property stolen from the plaintiff therein, the record of the conviction of the defendant in such suit, of the larceny of such property, is not competent evidence to prove his liability to the plaintiff for the value thereof.

Error to Circuit Court, McDowell County.

Suit by the Interstate Dry Goods Stores against Philip Williamson. Directed verdict and judgment for defendant, and plaintiff brings error. Affirmed.

Strother, Sale, Curd & Tucker, of Welch, for plaintiff in error.

Litz & Harman and George W. Howard, all of Welch, for defendant in error.

RITZ J.

Plaintiff brought this suit for the purpose of recovering the value of certain goods, which it averred were stolen by the defendant from its store in the city of Welch. A trial of the case in the circuit court resulted in a directed verdict in favor of the defendant and judgment thereon which the plaintiff seeks to reverse by this writ of error.

In the month of May, 1921, plaintiff's store was broken into and there was stolen therefrom merchandise of the value of more than $3,000. At the July term of the criminal court of McDowell county, an indictment was found against the defendant in this suit and three others, charging them with burglary. At the same term of the court, the defendants in that indictment elected to be tried separately, and the state elected to proceed to trial against the defendant in this suit, Phil Williamson. A trial was had, which resulted in a verdict of guilty. Upon motion made to set aside this verdict, an affidavit of the principal witness relied upon by the state for conviction was offered, to the effect that he testified falsely upon the trial. According to his testimony upon the trial, he was an accomplice of the defendant in the commission of the offense. Before passing upon the motion, he was brought into court and cross-examined, and also made another affidavit in which he stated that he told the truth upon the trial of the case, and that the affidavit which he made was false. The judge of the criminal court refused to set aside the verdict on this ground, and rendered judgment thereon, sentencing Williamson to be confined in the penitentiary. Williamson obtained, from the circuit court of McDowell county, a writ of error to this judgment, and the case was pending in that court, undetermined upon said writ of error, at the time of the trial of this case.

Immediately after the jury returned its verdict of guilty in the criminal case, but before the motion to set aside the same was passed upon, this suit was instituted in the circuit court of McDowell county, for the purpose of recovering from the defendant the value of the goods stolen from the storeroom. The case did not come on for trial until the 5th of October, 1921, after the judgment of conviction had been entered as aforesaid, and after the writ of error had been granted by the circuit court of McDowell county. On the trial of this case, the plaintiff offered in evidence the record of the conviction of the defendant, in the criminal court of McDowell county, of burglary, proof that the defendant here was the same party as the defendant who was convicted, and that the offense with which he was convicted was the robbery of the plaintiff's store, and evidence of the value of the goods stolen from the store on that occasion. No evidence was offered showing, or tending to show, that the defendant committed the burglary, except the judgment of conviction aforesaid. Upon this showing, the circuit court directed the jury to return a verdict for the defendant.

The sole question presented for our determination is, can the record of a judgment rendered in a criminal trial be used as evidence in a civil suit to prove the facts which were necessarily determined by it in the criminal case? The plaintiff argues that, unless this judgment can be used for that purpose, it cannot secure evidence to prove its cause of action, for the reason that the witness, upon whose testimony the conviction was had in the criminal case, has placed himself in such a...