Johnnie Fletcher HUSSEY
v.
Joe Dalton CHEEK.
No. 7620SC368.
Court of Appeals of North Carolina.
October 6, 1976.*520 Ottway Burton, Asheboro, for plaintiff-appellant.
Seawell, Pollock, Fullenwider, Van Camp & Robbins, P. A. by James R. Van Camp and Bruce T. Cunningham, Carthage, for defendant-appellee.
CLARK, Judge.
The issue presented is whether collateral estoppel may be applied to the issue of self-defense in a civil assault case when the defendant has previously been acquitted of a criminal assault arising out of the same occurrence.
In a recent decision, Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976), (three judges dissenting), rev'g 27 N.C.App. 435, 219 S.E.2d 648 (1975), the Supreme Court of North Carolina held that in a civil proceeding by the mother to have the defendant declared the father of her illegitimate child and to require child support of defendant, the prior conviction of the defendant in a criminal prosecution for bastardy did not estop the defendant in the present action to deny paternity. The court stated, "Thus, we conclude that, for the reason that the parties to the criminal and civil proceedings are not the same and the State and this plaintiff are not in privity, the defendant is not estopped in the present action to deny paternity . . .." 290 N.C. at page 114, 225 S.E.2d at page 826.
Though plaintiff in the present action was the "prosecuting witness" in the criminal prosecution and plaintiff's attorney in the present action was "private prosecutor" in the criminal prosecution, under the ruling in Tidwell, the parties to the criminal and civil proceedings are not the same, and the State and plaintiff are not in privity. The plaintiff in this civil action for personal injury resulting from assault and battery by the defendant is not estopped by the acquittal of the defendant in the criminal prosecution for the same alleged assault.
This same result may be reached in the present case by focusing on the burdens of proof in the two trials. In the criminal action the burden was on the State to prove the absence of self-defense beyond a reasonable doubt. State v. Fletcher, 268 N.C. 140, 150 S.E.2d 54 (1966). In the civil action the burden was on the defendant to prove self-defense by the greater weight of the evidence. Roberson v. Stokes, 181 N.C. 59, 106 S.E. 151 (1921). In no way can the State's failure to carry its burden in the criminal case be dispositive of the defendant's *521 burden in the civil case. When the burden of proof at the second trial is less than at the first, the failure to carry that burden at the first trial cannot raise an estoppel to carrying the lesser burden at the second trial.
The summary judgment for defendant is
Reversed and this cause Remanded.
BRITT and PARKER, JJ., concur.