Opinion
No. 31942.
December 9, 1935.
JUDGMENT.
In action for alleged assault on plaintiff by town marshal during marshal's attempt to arrest plaintiff, admitting evidence that plaintiff was tried and acquitted of offense for which marshal attempted to arrest him held reversible error since parties to proceedings and burden of proof therein were different.
APPEAL from the circuit court of Hinds county; HON. JULIAN P. ALEXANDER, Judge.
Watkins Eager, of Jackson, for appellants.
The trial court erred in reopening the case after both sides had rested, and in permitting appellee to introduce in evidence the affidavit of Q.M. Young made in the mayor's court of Terry charging appellee with a misdemeanor and the jury's verdict of acquittal shown thereon.
It is the contention of the appellants that the introduction of the affidavit, together with a verdict of the jury thereon in the criminal case, was not only immaterial, incompetent and irrelevant, but was highly prejudicial. In the first place, it was incompetent because of a lack of mutuality of parties. The affidavit was the origination of a suit or controversy between the state of Missouri and Albert Davis, the appellee here. Neither the appellant, Q.M. Young, nor the appellant, Maryland Casualty Company, were parties thereto. The result of that controversy would certainly not be binding on either of the appellants and is not evidence of anything involved in the controversy in the case at bar.
The degree of proof in the two cases was entirely different, consequently the affidavit and the finding of the jury in the criminal case has no bearing whatever and did not belong in the civil case.
Smith et al. v. Bryson, 33 S.W.2d 268; Piechotta v. Fried, 181 N.W. 602; Haverbekken v. Johnson, 228 S.W. 256; Bonino v. Caledonio, 11 N.E. 98; Fitzgerald v. Lewis, 41 N.E. 687; Adams, Revenue Agent, v. Sigman, 43 So. 877.
Howie Howie, of Jackson, for appellee.
The contention that the court erred in reopening the case is answered by the fact that it was solely within the discretion of the trial court to reopen a case and permit further testimony, and such action by the lower court will not be disturbed in the absence of the abuse of such discretion by the lower court.
Royston v. I.C.R. Co., 7 So. 320, 67 Miss. 376; French v. Canton, A. N.R. Co., 21 So. 299, 74 Miss. 542; Watkins v. Jackson E.R. Co. et al., 115 So. 897, 149 Miss. 766.
The theory upon which the affidavit was introduced by appellee is that counsel for appellants first brought the subject up on cross-examination of the appellee, and, therefore, that appellee had a right to show to the jury the true facts and circumstances, and the record of the case instead of leaving this matter beclouded before the jury, and that it was for the purpose of having the issues and facts properly before the jury that the appellee introduced the affidavit and requested permission for the introduction of such evidence in order to offset the effect of appellants' cross-examination in regard to the charges.
The testimony brought out on cross-examination of appellee needed to be answered and for that purpose and after it had first been introduced by counsel for appellants the affidavit and the verdict of acquittal thereon was shown to the jury and offered for the purpose of clearing up in the minds of the jury any doubt or suspicion that may have been created by such testimony as brought out in the cross-examination.
Carlisle v. City of Laurel, 124 So. 786, 156 Miss. 410; Barnes v. State, 143 So. 475, 164 Miss. 126.
Argued orally by Tom Watkins, for appellant, and by W.B. Fontaine, for appellee.
Appellee brought this action in the circuit court of Hinds county against appellants, the marshal of the town of Terry, and the Maryland Casualty Company, the surety on his official bond, to recover damages for an alleged assault committed on him by Young in attempting to arrest him for a criminal offense claimed to have been committed within the corporate limits of the town in the presence of Young. There was a verdict and judgment in appellee's favor, from which appellants prosecute this appeal.
The evidence for appellee tended to show that Young undertook to arrest appellee without any ground; that appellee was violating no law either of the state or of the town. On the other hand, the evidence for appellants tended to show that appellee was driving an automobile while drunk and was cursing in the presence of the marshal and others. In other words, there was a sharp conflict on the issue of liability.
Over the objection of appellants the court permitted appellee to introduce in evidence the affidavit of the marshal made in the mayor's court of the town of Terry charging the appellee with driving an automobile on the streets of the town while drunk, and the verdict of the jury on the back of the affidavit finding appellee not guilty of the charge. This action of the court was error and harmful error. The parties in the two cases were different. The burden of proof was different. In the criminal case the state was required to prove guilt beyond a reasonable doubt. In the civil action appellee was required to prove his case only by a preponderance of the evidence. Appellants had no opportunity to be heard in the criminal case, they were not parties to it. The following authorities are decisive of the question in favor of appellants' contention: Adams, Revenue Agent, v. Sigman, 89 Miss. 844, 43 So. 877; Smith v. Bryson (Tex. Civ. App.), 33 S.W.2d 268; Piechotta v. Fried, 46 N.D. 620, 181 N.W. 602; Haverbekken v. Johnson (Tex. Civ. App.), 228 S.W. 256; Bonino v. Caledonio, 144 Mass. 299, 11 N.E. 98; Fitzgerald v. Lewis, 164 Mass. 495, 41 N.E. 687.
Appellee argues that if it was error to admit in evidence the affidavit and verdict of the jury, the error was provoked by appellants. We find nothing in the record to justify that contention. If other errors were committed, they were of little importance and are of such character as will probably not occur on another trial.
Reversed and remanded.