Stone v. United States

• Decision Date: 02 October 1894
• Docket Number: 153.
• Parties: STONE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

64 F. 667

STONE v. UNITED STATES.

No. 153.

United States Court of Appeals, Ninth Circuit.

October 2, 1894

[Copyrighted Material Omitted]

This action was brought to recover the value of certain timber alleged to have been taken from the public lands of the United States, and converted by the defendant (plaintiff in error) to his own use. There was pending at the same time a similar action, wherein the United States were plaintiffs and John H. Stone, Edward Noonan, and W. G. Kegler, doing business as the Spokane Fuel Company, were defendants, which was consolidated and tried with this action. Both cases were tried together before a jury, and a verdict rendered in this action in favor of plaintiffs (defendants in error) for the sum of $19,000, and in the second action in favor of plaintiffs for $3,000. The verdict in the second action was on defendants' motion, set aside. Only the first action, against Stone individually, is here for review upon its merits. The complaint alleges the ownership of the lands from which the timber was taken, and of the timber taken and converted, to be in plaintiffs; its value; the unlawful taking and conversion by defendants,-- and prays for judgment for its value. The answer consists of a general denial of all the allegations of the complaint, except as to the quantity of timber alleged to have been sold to the Spokane Mill Company. As affirmative defenses, the answer avers, in substance: (1) That between the months of August, 1888, and November, 1890, the defendant had certain contracts with his customers for the supply of railroad ties, and timber for the manufacture of lumber, at points along the line of the Northern Pacific Railroad, in the state of Washington, adjacent to the region mentioned in the complaint; that he procured timber, for the purpose of filling these contracts, from the lands embraced in the grant to aid in the construction of the Northern Pacific Railroad, made by acts of congress for that purpose, and by contract with that company, and that he had not at any time cut timber on any other land, except such as belonged to said railroad company; that he purchased timber and ties suitable for railroad uses from other persons, but, upon information and belief, alleges that all such ties and timber were either cut from railroad lands, or were lawfully cut and sold to him by such other persons, and that no part thereof was cut or taken from lands of the United States; that the ties which he purchased were for the use of, and were used in, the construction of the Spokane & Palouse Railroad and the Central Washington Railroad, both corporations being organized and constructing their roads under and in compliance with grants made to them by the act of congress of March 3, 1875; that such taking was not a trespass, but was by authority of law. (2) That in the month of April, 1891, at a term of the United States district court for the district of Idaho, the defendant was indicted for the commission of all the wrongs and trespasses for which this action was brought, under section 2461 of the Revised Statutes of the United States, as an offense against the penal laws of the United States; that he was arraigned upon said indictment, and pleaded not guilty; that he was afterwards tried upon said indictment, acquitted by the verdict of the jury, and discharged therefrom; and that said acquittal and discharge constitute a bar to this action. The plaintiffs replied to all of the averments in the answer, except the second affirmative defense, and to this they demurred upon the ground that the defense therein stated as a bar did not state facts sufficient to constitute a defense to the action. This demurrer was sustained. Upon the trial, defendant offered to prove this defense by the production of the record of his acquittal and discharge. This evidence was refused. There are 18 specific assignments of error, which will be noticed under appropriate heads in the opinion.

John R. McBridge, for plaintiff in error.

Wm. H. Brinker, U.S. Atty., for defendants in error.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge (after stating the facts).

1. Did the court err in sustaining the demurrer to that part of defendant's answer which pleaded the indictment, trial, and verdict of acquittal in the Idaho court, and in excluding the same when offered in evidence?

That the judgment of a court of competent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence, conclusive between the same parties upon the same matter directly in question in another court, is too well settled to require discussion. It is also well settled that the plea of res adjudicata, except in certain special cases, is not only conclusive upon the questions which the courts were required to form an opinion and pronounce judgment on, but upon every point which properly belonged to the subject of litigation, and which was, or might properly have been brought forward in the former suit. One of the safest rules for courts to follow in determining whether a prior judgment between the same parties, concerning the same matters, is a bar, is to ascertain whether the same evidence which is necessary to sustain the second action, if it had been given in the former suit, would have authorized a recovery therein. Under this test, is the judgment in the criminal case a bar to this action? What facts were required to be proven in order to sustain the respective actions? The criminal case in Idaho was instituted and prosecuted by the United States against the defendant for an alleged willful violation of a statute which, among other things, provided that:

'If any person shall cut, or cause or procure to be cut, or aid, assist, or be employed in cutting or shall wantonly destroy, or cause or procure to be wantonly destroyed, or aid, assist, or be employed in wantonly destroying any live oak or red cedar trees, or other timber standing, growing, or being on any lands of the United States * * * shall pay a fine * * * and be imprisoned not exceeding twelve months. ' Rev. St. U.S. Sec. 2461.

The indictment charged that defendant, at the time and place and upon the public lands therein mentioned, 'did then and there, unlawfully, willfully, and feloniously, cut and remove, and cause and procure to be cut and removed, from said lands, fifty thousand timber trees then and there being and growing upon said lands,' etc. This was an essential averment, which was necessary to be proven in order to convict the defendant. The present action was brought to recover the value of the timber cut from the same lands. In order to sustain this action, it was only necessary, after establishing the title of plaintiffs to the lands, and the value of the timber taken therefrom, to prove that the defendant received and converted the timber to his own use. In other words, it was necessary, in the criminal case, to prove that the defendant, with knowledge that the lands belonged to the United States, and with the intent and purpose to defraud the government, either personally cut and removed the timber, or, with such knowledge and intent, caused and procured the timber to be cut and removed; while, to maintain this action, it was only necessary to prove that the timber belonged to the government, and that the defendant came into possession of it, and converted it to his own use without authority from the government. If, in establishing these facts, the evidence showed that the defendant was only an unintentional-- not willful-- trespasser, or an innocent purchaser for value, or the purchaser from a trespasser without notice, the government would, under the principles announced in Wooden-Ware Co. v. U.S., 106 U.S. 432, 1 Sup.Ct. 398, be entitled to recover. It will therefore readily be seen that, if the same evidence which was necessary to sustain the present action had been given in the former suit, it would not have authorized a conviction therein; and, under the test which we have stated, it would necessarily follow that the former judgment of acquittal is not a bar to the present action.

Is the test stated established by authority?

Freeman, in his work on Judgments, says:

'The best and most invariable test as to whether a former judgment is a bar is to inquire whether the same evidence will sustain both the present and the former action. If this identity of evidence is found, it will make no difference that the form of the two actions is not the same. * * * Whatever, be the form of action, the issue is deemed the same whenever it may, in both actions, be supported by substantially the same evidence. If so supported, a judgment in one action is conclusive upon the same issue in any other suit, though the cause of action is different. On the other hand, if different proofs are required to sustain two actions, a judgment in one of them is no bar to the other. If the evidence in a second suit between the same parties is sufficient to entitle plaintiff to a recovery, his right cannot be defeated by showing any judgment against him in any action where the evidence in the present suit could not, if offered, have altered the result.' 1 Freem.Judgm.§ 259.

This principle is recognized in Miller v. Manice, 6 Hill, 121, cited by defendant, and is fully sustained by numerous authorities. Gayer v. Parker, 24 Neb. 643, 39 N.W 845; Taylor v. Castle, 42 Cal. 371; Gilmer v. Morris, 30 F. 483; Riker v. Hooper, 35 Vt. 457; Ireland v. Emmerson, 93 Ind. 2; Gordon v. State, 71 Ala. 315; Percy v. Foote, 36 Conn. 102. But it is contended by defendant that the precise question involved in this case has been decided in his favor by the supreme court in Coffey v. U.S., 116 U.S. 442, 6 Sup.Ct. 437. That opinion does...