Jay v. State

• Decision Date: 07 September 1916
• Docket Number: 4 Div. 424
• Citation: 73 So. 137,15 Ala.App. 255
• Parties: JAY v. STATE.
• Court: Alabama Court of Appeals

73 So. 137

15 Ala.App. 255

JAY v. STATE.

4 Div. 424

Court of Appeals of Alabama

September 7, 1916

Rehearing Denied Oct. 19, 1916

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

John D Jay was convicted of perjury, and he appeals. Reversed and remanded.

W.O Mulkey and C.D. Carmichael, both of Geneva, for appellant.

W.L Martin, Atty. Gen., and H.G. Davis, Asst. Atty. Gen., for the State.

EVANS J.

This appeal is prosecuted from a judgment of conviction for perjury; the appellant, it is alleged, having forsworn himself in a prosecution against him for seduction. On the trial, appellant offered his wife as a witness in his behalf but the learned trial court excluded her as an incompetent witness. The trial occurred on the 13th day of October, 1915; a short time prior thereto, to wit, on September 28, 1915, an act was approved entitled "An act permitting husband and wife to testify for or against each other in criminal cases." Acts 1915, p. 942. The act in question went into effect upon its approval. It follows that this cause must be reversed and remanded for another trial.

Since the cause must be remanded, we advert to the chief contention of counsel embraced in his special plea of res judicata. (The reporter will set out the plea.) The proposition involved and presented by said plea may be succinctly stated as follows: Appellant was formerly indicted and tried for the seduction of a young woman, S. One of the questions involved in the issues of that case and directly presented to and passed upon by the jury was whether appellant had sexual intercourse with S. The jury acquitted appellant; hence it is urged that appellant cannot be convicted of perjury in swearing that he had not had sexual intercourse with S., as that was one of the facts embraced in the issues the jury determined in appellant's favor. This fact determined by the issues, it is contended, was settled and adjudicated, and, so far as any further prosecution of appellant was concerned, became res judicata.

The doctrine and principles of res judicata, it is held, are applicable to criminal as well as to civil cases. Obviously, a judgment in a civil cause could not operate as res judicata in a criminal cause, or vice versa, for the reason that there is no mutuality of parties, and for the further reason that a different degree of proof is exacted in the one than the other; but, broadly speaking, where res judicata is fitting, it has its field of operation, whether the issues or subject-matter determined be in the civil or criminal forum. See 2 Van Fleet's Former Adjudication, § 628; 24 Am. & Eng.Encyc.Law (2d Ed.) 830, 831; 23 Cyc. 1347; People v. Albers, 137 Mich. 679, 100 N.W. 908; monographic note, 103 Am.St.Rep. 20 et seq.; Commonwealth v. Ellis, 160 Mass. 165, 35 N.E. 773. See, also, in this connection, Mitchell's Case, 140 Ala. 118, 37 So. 76, 103 Am.St.Rep. 17. It should be remarked that the principles of res judicata were first formulated and promulgated in a celebrated criminal case. Rex v. Duchess of Kingston, 20 How.St.Tr. 538; s.c., 2 Smith's Leading Cases (8th Ed.) 784.

Res judicata finds its analogy or counterpart in criminal law in the constitutional safeguard of former jeopardy; in the case of jeopardy, however, there must be an identity of offenses both in law and fact before the bar will operate (Gordon v. State, 71 Ala. 315; Gustin v. State, 10 Ala.App. 171, 65 So. 302); but in res judicata any fact that was adjudicated and determined upon its merits and not merely collateral, and which was within the issues framed, is forever foreclosed and barred in any future litigation involving that adjudicated fact when the same is again contested between the same parties; provided, it may be added, that both causes are civil or criminal, as the case may be (23 Cyc. 1165, 1170; 24 Am. & Eng.Encyc.Law [2d Ed.] 778c, 780d, 781 [5a]; McCalley v. Robinson's Adm'r, 70 Ala. 432; Tankersly v. Pettis, 71 Ala. 179; McCall v. Jones, 72 Ala. 368; Crausby v. Crausby, 164 Ala. 476, 51 So. 529; Johnson v. Odom, 11 Ala.App. 364, 66 So. 853; Mason v. Mason, 5 Ala.App. 377, 59 So. 699; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195).

The trial court having jurisdiction of the party and subject-matter, the judgment in the seduction case, though obtained by fraud and perjury, was not void, and its validity cannot be assailed on collateral attack. 23 Cyc. 1126c, 1099, 1059(6), 1100c; 24 Am. & Eng.Encyc.Law (2d Ed.) 720b; Gandy v. State, 86 Ala. 20, 5 So. 420; Logan v. Cen. Iron & Coal Co., 139 Ala. 548, 36 So. 729; 2 Freeman on Judgments, §§ 334, 336; Chattanooga, etc., v. Vaught, 143 Ala. 389, 39 So. 215.

One might have been acquitted of seduction and still have had sexual intercourse with the female in question, for non constat the jury might have found that the sexual relations were accomplished without the concomitant arts, deceptions, or blandishments denounced by the statute, or perchance her testimony lacked corroboration, or because of unchastity, any of these, under the statute, would have warranted an acquittal; but it cannot be argued from this that, because the judgment could be the same whether appellant did or did not have sexual intercourse, this question was not a necessary and material in issue to sustain the judgment of acquittal, and that hence the judgment did not operate as conclusive of that matter. Suffice it to say that the question of sexual intercourse vel non was a necessary and pivotal inquiry, and as such was contested and directly submitted to the jury as one of the necessary facts involved and embraced within the issues submitted to and passed upon by them. The rule also is that, where it does not appear from the record whether certain material facts were presented and determined; evidence dehors the record may be adduced to prove the presentation and litigation of such facts to sustain the plea of res judicata. 23 Cyc. 1534, 1535; 24 Am. & Eng.Encyc.Law (2d Ed.) 835b. While the two crimes are separate and distinct offenses, the fact that the question of sexual intercourse became res judicata in the seduction case, and that the question of perjury rests entirely upon the establishment of the falsity of that very question, the perjury charge must of necessity fall for lack of support if a plea of res judicata conclusively bars and forecloses further inquiry as to the falsity vel non of appellant's testimony on the question of intercourse.

Appellant cites Cooper v. Commonwealth, 106 Ky. 909, 51 S.W. 789, 59 S.W. 524, 45 L.R.A. 216, 90 Am.St.Rep. 275, which upholds his contention. He also cites United States v. Butler (D.C.) 38 F. 498; Mitchell v. State, 140 Ala. 118, 37 So. 76, 103 Am.St.Rep. 17 and monographic note page 19 et seq.; State v. Adams, 72 Vt. 253, 47 A. 779, 82 Am.St.Rep. 937; Commonwealth v. Evans, 101 Mass. 25; Petit v. Commonwealth (Ky.) 57 S.W. 14. In Cooper's Case, supra, our own court has declared that the dissenting opinion therein is the better considered. See McDaniel's Case, 13 Ala.App. 318, 69 So. 351. Butler's Case, supra, has been severely criticized and condemned in a case of the Circuit Court of Appeals. Allen v.

United States, 194 F. 664, 114 C.C.A. 357, 39 L.R.A. (N.S.) 385 .

We have carefully reviewed the authorities dealing with the question of perjury in cases wherein the accused was acquitted through his perjury. The following authorities hold that the accused may be convicted of perjury, notwithstanding his former acquittal; but they do not satisfactorily...