At a former term the judgment in this case was affirmed, and now comes before us on motion for rehearing. In passing on the motion we will only review such questions as we think are material and necessary to be considered. In the original opinion we held that the judgment against appellant in a civil suit was admissible in evidence against him on the part of the State in a criminal case. Said judgment was rendered in a civil suit, in which the State of Texas was plaintiff, and W.M.C. Hill, the financial agent of Texas penitentiaries, and his bondsmen were defendants. In that suit the defalcation of this appellant was the material question, and the defendant Hill and others made appellant a party defendant. The litigation directly involved this appellant's management of the Rusk penitentiary, and his deficit to the State during the four years of his management as Hill's subordinate. At the instances of the parties to that litigation an auditor was appointed, and he ascertained and reported to the court a deficit of some $6,000. The suit was compromised, and a judgment by consent rendered for the sum of $4,200, about one-half of which was paid by Hill, and the other half of which was paid by a bond company who were securities on this appellant's bond. The State offered that judgment in evidence against appellant in this case. This was objected to on the ground that a judgment in a civil case was not admissible in evidence against this appellant. As stated, appellant was a party to the civil suit, and the State was a party to that suit, and the same subject-matter, to wit: appellant's defalcation or indebtedness to the penitentiary was involved in both suits, and we, *Page 308 therefore, held that the judgment was admissible. In his original presentation of the case appellant furnished no authorities, but he now cites a number to sustain his position, and he also criticises the authorities cited by the court, to wit: State v. Intoxicating Liquors, 47 Atlantic Rep., 779, and Coffey v. U.S., 116 U.S. Rep., 436. The cases cited by appellant are as follows: Britton v. State, 77 Ala. 202; Riker v. Hooper, 35 Vt. 457; State v. Bradnack, 69 Conn. 212; People v. Leland, 73 Hun, 162; Dunagain v. State, 38 Tex.Crim. Rep.; People v. Kenyon,93 Mich. 19; People v. Beevers, 99 Cal. 286; 2 Black on Judgments, sec. 599; U.S. v. Jaedicke, 73 Fed. Rep., 103, and Stone v. U.S., 64 Fed. Rep., 671. We have carefully reviewed the authorities heretofore cited by this court as well as those furnished by appellant. The State v. Intoxicating Liquors, supra, was a proceeding in rem, and the effect of the holding there was to make the record of same party's acquittal on a charge of keeping with unlawful intent intoxicating liquors evidence in his favor in a civil proceeding in rem, and a complete bar to a prosecution. It is said, "that this proceeding is civil, and not criminal, in its nature, and that a judgment in a criminal case cannot be used in a civil action as proof of the facts determined. Undoubtedly the rules governing the admissibility of judgments will ordinarily prevent this use, but the mere fact that one proceeding is civil, and the other criminal, does not render the doctrine of res judicata inapplicable." Coffey v. U.S. is referred to in that decision, and is authority to the effect that the judgment in a libel suit against Coffey, which was in the nature of a proceeding in rem, was conclusive in his favor in a subsequent criminal prosecution involving the same question. This latter case was reviewed in Stone v. U.S., 167 U.S. 186, and it was there said: "That the rule established in the Coffey case can have no application in a civil case not involving any question of criminal intent or of forfeiture for prohibited acts, but turning wholly upon an issue as to the ownership of property. In the criminal case the government sought to punish a criminal offense, while in the civil case it only seeks in its capacity as owner of property, illegally converted, to recover its value. In the criminal case his acquittal may have been due to the fact that the government failed to show, beyond a reasonable doubt, the existence of same fact essential to establish the offense charged, while the same evidence in a civil action brought to recover the value of the property illegally converted might have been sufficient to entitle the government to a verdict. Not only was a greater degree of proof requisite to support the indictment than is sufficient to sustain a civil action, but an essential fact had to be proved in the criminal case, which was not necessary to be proved in the present suit. In order to convict the defendant upon the indictment for unlawfully, wilfully and feloniously cutting and removing timber from lands of the United States, it was necessary to prove a criminal intent on his part, or at least that he knew the timber to be the property of the United States. * * * *Page 309 But the present action for the conversion of the timber would be supported by proof that it was in fact the property of the United States, whether the defendant knew that fact or not." And it was held that the United States, in the criminal case there presented that the defendant had not been guilty of a crime, neither forfeited its rights of property in the timber nor its right in the civil action, upon a preponderance of proof, to recover the value of such property. We are constrained to concede that neither of the authorities formerly referred to by us are exactly in point, and when analyzed they do not support the view taken by the court. We have also been referred to the cases of Dorrell v. State, 83 Ind. 357; Commonwealth v. Ham, 31 N.E. 639, and State v. Meek et al. (Iowa), 84, N.W., 3, as tending to support the position heretofore assumed by the court on this proposition. The Dorrell case is simply authority for holding that a former adjudication in a civil action establishing a boundary between two parties, that the judgment in said case was admissible against the defendant in a subsequent prosecution for trespassing across the boundary line which had previously been established. It was held in that case that the establishment of a boundary line in a former proceeding excluded any inquiry into antecedent facts to the contrary. In Meeks case it was held that a judgment of not guilty entered before a justice of the peace under an act declaring the maintenance of any dam without a fishway to be a nuisance subject to abatement, was a bar to a subsequent suit in equity to abate the nuisance (the justice having jurisidiction, and there being no change in the conditions), since the abatement of the nuisance would have been a part of the penalty imposed had there been a conviction before the justice. It may be said that neither of these cases are in point, though some of the cases referred to tend to show that under certain circumstances judgments in civil cases are admissible in criminal prosecutions between the same parties; and to the same effect see Dent v. State, 43 Tex.Crim. Rep.; Burt v. Union Central Life Insurance Co., 187 U.S. 362, Lawyers' Edition, 216. In the latter case the court held in effect that the judgment of a State court convicting appellant of murder in the first degree, under which he was executed, was final in a civil action to recover on a life policy of the deceased in favor of the beneficiaries therein as against his plea of insanity offered in a civil case, discriminating that case from the Mutual Life Insurance Company v. Armstrong, 117 U.S. 591. However, the question of the introduction of a judgment in civil cases between the same parties in a criminal case, has been before the courts in several cases, and the general doctrine announced that such records are not admissible in evidence. In Queen v. Moreau, 11 A. E. (N.S.), 1028, English Common Law, this question came before Lord Denman. In that case F was indicted for perjury committed by deposing, in an affidavit in a cause wherein he, F, was plaintiff, and E defendant, that E owed him 50 pounds, and it was held, in support of this indictment, evidence was ot admissible *Page 310 that the cause of F against E was, after the making of the affidavit, referred by consent, and an award made that E owed nothing to F. After some colloquium, in which the authorities are cited, the chief justice said, "This was an indictment for perjury in an affidavit to found an application for a capias, alleging that the defendant in that suit, the prosecutor of this indictment, was indebted to him in the sum of 50 pounds. In order to prove the falsehood of that allegation, an award was put in evidence at the trial. After the indictment was found, the cause between the parties came on at the assizes and was then referred to the arbitration of a barrister, who decided in favor of the defendant, that he owed nothing to the plaintiff. His award is the document objected to, but admitted. On a motion for a new trial on this ground, we are of opinion that it was improperly received; not because the untruth of the statement was not necessarily inconsistent with the defendant's believing it to be true; for his knowledge of its falsehood would require it to be proved by other evidence; but because the decision of the arbitrator in respect to that fact is no more than a declaration of his opinion, and there is no instance of such a declaration of opinion being received as evidence of a fact against the party to be affected by the proof of it in any criminal case." Other authorities put the doctrine on other grounds as that the rule of evidence in civil and criminal cases is different, the one authorizing a judgment on a preponderance of evidence while the other requires the proof to be beyond a reasonable doubt, etc. Still, others place the doctrine on the ground of a want of mutuality, the parties not being the same in criminal and civil cases, and some upon the idea that in a civil case the parties need not be confronted by the witnesses, but depositions can be taken, while in a criminal case the parties must be confronted by the witnesses against them. Britton's case, supra, cited by appellant, is very much in point. There a civil judgment was recovered against a defaulting tax collector and his sureties, and it was held by the Supreme Court of Alabama that it was reversible error in the court below to have admitted the judgment in evidence against the same party in a criminal prosecution, the judgment establishing the amount of his defalcation. In passing on this question the court used this language: "The judgment recovered against the defendant and his sureties, in the civil suit instituted against them by the County of Hale, for liabilities incurred in his tax transactions, was not properly admissible in evidence to establish any fact on which it was rendered. In civil actions juries are authorized to decide on the mere preponderance of the evidence, when it produces satisfactory conviction. In criminal prosecutions, they are not authorized to convict, unless they are satisfied of the party's guilt beyond any reasonable doubt. The judgment in the civil cause, moreover, may have been rendered on a state of facts totally irrelevant in a criminal prosecution for embezzlement, as, for example, for a liability incurred by reason of the defalcation of the collector's deputies, or even his own negligent loss of *Page 311 the tax money, for which he would be civilly but not criminally liable. Another reason still is the want of mutuality, the parties to the two proceedings being different, the judgment having been recovered in the name of the county, and the prosecution being in the name of the State. It would be hard for a defendant, as observed by Mr. Starkie, `that upon a criminal charge, which concerns his liberty, or even his life, he should be bound by any default of his in defending his property.'" To the same effect are several of the authorities cited by appellant. In accordance with these we are constrained to hold that the view heretofore taken was erroneous, and that the court below should not have admitted the judgment rendered in the civil case against appellant, notwithstanding the State was a party plaintiff in the civil suit, and appellant was one of the defendants; thus far, there was mutuality but not complete mutuality, as there were other defendants, and although the subject-matter of the suit was the same, as we have seen, the rule of evidence was different in the two proceedings; said judgment may have been and doubtless was rendered upon a character of proof not permissible in this criminal prosecution. Furthermore, if we should hold that there was complete mutuality in both civil and criminal actions, it would necessarily follow, if the State had been defeated in the civil action, and the judgment rendered in favor of this appellant, same would be a complete bar to any criminal prosecution, which is not the law. The question then presents itself, said judgment having been admitted erroneously, can we say that it was not calculated to injuriously affect appellant. As shown in the original opinion, the State presented three characters of proof, one the judgment, another consisting of distinct items of defalcation, amounting to about $6,000, and the other being the report of the auditors who examined the books and testified that appellant was in default, according to their showing, in the sum of about $9,000. In the midst of this contrariety of evidence, what figure would the judgment cut? If it was conclusive, as they were authorized by the court to regard it, it cut off all further inquiry as to his defalcation. If it was prima facie evidence only it cast the burden on appellant to show that the judgment was erroneous. Evidently the court put the judgment before the jury as conclusive evidence of his defalcation, as he instructed them in effect if the evidence showed that appellant was in default and that same had been subsequently paid or settled by appellant or others, it would be no defense. This charge must have referred to the settlement of this judgment debt, which the evidence shows was paid. Aside from this, we are aware with what sanctity the solemn judgments of courts are regarded, and unquestionably in case the jury entertained any doubt upon other lines of the State's case, as to appellant's defalcation, this doubt must have been entirely removed by reference to the judgment. Under the circumstances, we believe it was bound to have a very decided effect with the jury upon one essential feature of the State's case; that is, appellant's defalcation and the amount thereof. *Page 312
As the case must be reversed on this account, if for no other, we will merely refer to some other matters assigned in appellant's motion for rehearing for the guidance of the court below in another trial of the case.
Appellant questions the opinion of the court in holding that the lower court was not required to charge more fully than was done on the question of fraudulent intent and mistake, and that this failure to so charge was justified by appellant's negligence in dealing with the State's funds and in mixing his own private funds therewith. We did not intend to say that because of appellant's negligence the court would be authorized to say that this was tantamount to fraud on his part, but rather, in our opinion, the court was not required to give appellant's charges on this subject inasmuch as the court instructed the jury in regard thereto, and in connection with the other proof it occurred to us that the court might not be required to further charge on the subject of mistake and fraud than was done. However, on another trial we suggest if the proof should be the same that the court instruct the jury pertinently and directly as to his defense of mistake superinduced by his method of dealing with the bank. If appellant was misled by the failure of the bank to report to him certain collections in making his reports to Hill of the amounts collected, he should have had the benefit of this in a special charge. While appellant's negligence might be suggestive of fraud, it was not intended to decide that this was plenary proof of fraud. It may be that the court's charge on this subject was not full enough, and we may have been mistaken in the original opinion in holding that appellant's special requested charges on the subject were not required. However, this can be remedied in another trial. If the proof should not be satisfactory when the case is again tried that the books offered in evidence were kept by appellant, or under his direct supervision and control, then they should be excluded, unless other proof is offered that said books were properly kept; and that they were books of original entries.
Of course, we take it on another trial the court will rectify his charge on circumstantial evidence, should a charge on that subject be deemed necessary.
On another trial the court should be careful to eliminate all items barred by the statutes of limitation. Any items that are introduced in evidence that are questioned on the ground of limitation, the jury should be simply instructed to disregard all such items that they find to be so barred in considering their verdict.
The rehearing is granted, and the judgment is reversed and the cause remanded.
Reversed and remanded.
Brooks, Judge, dissents.