Sorbello v. Mangino

• Decision Date: 14 May 1931
• Parties: SORBELLO et al. v. MANGINO et al.
• Court: New Jersey Court of Chancery

155 A. 6

SORBELLO et al.

v. MANGINO et al.

Court of Chancery of New Jersey.

May 14, 1931.

Syllabus by the Court.

The record of conviction of a defendant in a criminal case is not admissible in evidence in a civil action to establish the truth of the facts on which the conviction was had.

Query: Can a murderer acquire property by or as a consequence of his crime and keep it?

Suit by Agata Sorbello and others against Antonio Mangino and another.

Decree in accordance with opinion.

Francis A. Castellano, Jr., of West New York, for complainants.

Lewis G. Hansen, of Jersey City, for defendant Antonio Mangino.

Vanderbach & Vanderbach, of Guttenberg, for defendant Jack Schwartz.

FIELDER, Vice Chancellor.

The defendant Antonio Mangino and his wife were the owners, as tenants by the entirety of real estate situate in this state, and she was also the owner, in her name alone, of two bonds and mortgages. The complainants are their only children, and they charge in their bill of complaint that on July 5, 1930, Mangino murdered his wife and that she died intestate. They allege that he should not be permitted to profit by his criminal act and take an absolute fee simple in the real estate of which he and his wife were tenants by the entirety, or any interest in the personal property of which she died possessed, and they pray that they be adjudged the legal owners of such real estate, subject to his life Interest therein and of said personal property, as the sole heirs at law and next of kin of their mother. They further pray that Mangino be enjoined from asserting sole ownership to said lauds and from conveying the same and from asserting any interest in said personal property, and for such other relief as they may be entitled to. A preliminary restraint was granted against Mangino, enjoining him from disposing of or incumbering the real estate.

The complainants must first establish that Mangino murdered his wife. At the hearing of this cause there was offered and admitted in evidence the record of Mangino's indictment for murder, the trial before the Hudson Oyer and Terminer, his conviction January 20, 1931, of murder in the second degree, and his sentence to state prison. The testimony before me showed that the deceased was killed in her home late at night, or in the early morning hours, after she and Mangino had returned home from a visit to one of the complainants, throughout which visit they appeared to be on friendly terms. Beside the record of the criminal proceedings, the only evidence to prove the murder was given by Mangino's son, one of the complainants, who testified before me that the deceased was killed by a bullet wound; that Mangino said, in the witness' hearing, that robbers had shot her; that at the trial on his indictment Mangino testified that he and the deceased had a struggle over the possession of a revolver, and that it went off and shot her; that Mangino and the deceased had frequent quarrels, and three years prior to the shooting Mangino had threatened to kill his wife. Mangino was in court at the hearing before me, on a habeas corpus ad testificandum obtained by his counsel, but was not called as a witness. Leaving out of consideration for the moment the record of Mangino's conviction, it is obvious that there was insufficient evidence before me to establish that Mangino had murdered his wife, and the question is: Is the record of his conviction admissible to prove the charge?

We have in our Crimes Act the following section: "Nothing in any of the sections of this act contained, nor any proceeding, conviction or judgment to be had or taken thereon against any person, under any of the said sections, shall prevent, lessen or impeach any remedy at law or in equity which any party aggrieved by any offense against any of the said sections might have had if this act had not been passed; but no conviction of any such offender shall be received in evidence in any action at law or in equity against him." 2 Comp. St. 1910, p. 1813, § 221.

It is stated in Kowalski v. Director General, 93 N. J. Law, 340, 107 A. 477, affirmed 96 N. J. Law, 293, 114 A. 927, that the record of conviction in a criminal case is not evidence in a civil suit of the truth of the commission of the crime.

Stewart v. Stewart, 93 N. J. Eq. 1, 114 A. 851, an uncontested suit for divorce on the ground of adultery, holds that the record of the trial of the defendant before the Passaic Quarter Sessions on a charge of adultery, wherein the record showed that the defendant pleaded guilty, was competent as evidence of an admission by the defendant that he had committed adultery.

Tucker v. Tucker, 101 N. J. Eq. 72, 137 A. 404, was also an uncontested suit for divorce on the ground of adultery wherein the proof of guilt was the record of conviction of the defendant and the co-respondent in the Essex Special Sessions on a joint charge of adultery, the record showing that the defendant was convicted after trial and that the co-respondent pleaded guilty. In accepting the record as evidence, the court said that the defendant's failure to defend the divorce suit might be taken as a confession of guilt and that the record of his conviction in the criminal case could be taken to satisfy the Chancellor's conscience that a decree for divorce against the defaulting defendant was justified. But the court also said that the record was not accepted as res adjudicata and that it is the rule that a conviction in a criminal prosecution is not admissible in a purely civil action to establish the truth of the facts on which it is rendered.

I can understand why the record of acquittal in a criminal case should not bind a person who seeks to enforce in a civil court, a...