Mr. Justice Taylor
delivered the opinion of the court.
i This is an appeal from a judgment in the sum of $1,000 in favor of the plaintiff and ag’ainst the defendant for an assault and battery.
The suit was begun on June 13, 1921. The declaration consists of three counts. The first count charged that the defendant shot and wounded the plaintiff. The second charged that the defendant assaulted her, struck her with a knife and with her fists, threw her down and kicked her. The third count charged that the defendant beat and bruised and wounded her. The ad damnum is $10,000.
On July 2, 1921, the defendant filed a plea of not guilty. On May 14, 1923, the plaintiff filed a replication. On the same day the case was called for trial and a jury sworn to try the issues. On the next day, the defendant, having obtained leave of court, filed an additional plea of son assault demesne, alleging that the plaintiff first assaulted her and in lawfully defending herself, “did commit the supposed trespasses in the said declaration mentioned.” On the same day, May 15, 1923, the plaintiff filed an additional replication to the plea of son assault demesne. That replication set up that at the March term, 1920, of the criminal court of Cook county, the defendant was indicted for assault with intent to kill the plaintiff herein, on October 23, 1919; that the defendant was arraigned and pleaded not guilty; that she was tried before the court without a iurv. a jury being waived; that the defendant interposed'the defense of necessary self-defense; that after hearing the evidence the court found the defendant guilty'o'f'-a-ss-aralt with intent to do bodily injury, and assessed a fine against her in sum of $300 and costs, which the defendant thereupon paid; that that assault for which the defendant was tried and found guilty in the criminal court was the same assault that was perpetrated upon the plaintiff herein on October 23, 1919; that the damages herein civilly sued for were caused by that assault; that the parties are the same in both cases; that the special plea of son assault demesne has been adjudicated and disposed of in the criminal court, as aforesaid; that the conviction of the defendant in the criminal court is a complete bar to the special plea. The plaintiff asked judgment that the special plea be quashed.
To that replication the defendant filed a general demurrer. The cause went to trial before court and jury, and at the close of the evidence an order was entered sustaining the defendant’s demurrer to the first replication, and giving the plaintiff leave to stand on that replication. That order contained also the following:
“And this cause coming on now to he heard upon the defendant’s demurrer to the plaintiff’s additional replication to the defendant’s special plea of justification heretofore filed herein, after arguments of counsel and due deliberation by the court said demurrer is overruled, thereupon at the close of all the , evidence, the court instructs the jury to find the defendant guilty, and the jury say: ‘We the jury find the defendant guilty and assess the plaintiff’s damages at the sum of One Thousand Dollars. ’ ”
The evidence of the plaintiff is that on October 23, 1919, the defendant shot at her three times, hitting her once; that she was injured so that she was taken to a hospital where she remained three weeks; that she was wounded in the right side and was in bed for three months and attended by a physician for six months. One Jennie Miele testified that she heard some shooting and turned round and saw the defendant shoot the plaintiff. Counsel for the defendant, upon cross-examination of the plaintiff, and upon the examination of witnesses called for the defendant, undertook to show that the plaintiff first assaulted the defendant and that the defendant acted in self-defense; that before she fired at the plaintiff the latter followed her up, on a public sidewalk, struck her with a stick, and fired two shots at her, but the trial judge, in view of the defendant’s demurrer to the additional replication which set up the conviction of the defendant in the criminal court, ruled that such evidence was incompetent; that evidence was only competent on the subject of damages.
On this appeal but one question is argued for the defendant, and that, in the language of the brief, is as follows:
“Was the trial court in error when it ruled that the Vconviction of the defendant in the criminal court forever barred her from proving under her plea of justification that she shot the plaintiff in self-defense?”
There is some confusion in the record as to the orders that were entered, but we shall assume, as - counsel have, that the rulings and judgment of the trial judge were based on the assumption that the admission of the conviction in the criminal court rendered unnecessary and incompetent further proof of the assault and battery.
The Criminal Code, ch. 38, div. 2, ¶ 630, Cahill’s Ill. St. 1923, provides as follows:
“Nothing in this Act contained shall be so construed as to prevent the party injured from having and maintaining a civil action for all damages and losses that he may have sustained in consequence of the commission of any criminal offense herein provided for; and no court shall allow or entertain the plea that the private injury is merged in the crime, or in any manner affected thereby: Provided, however, the record of conviction shall not be used as evidence in any civil action brought on any forged writing, or to recover the damages and losses sustained by the commission of any such criminal offense.”
It is frequently stated “that a judgment in a criminal prosecution is no bar to a subsequent civil action arising from the same prosecution, and that the record of the criminal cause is not competent evidence in the civil action.” 15 R. C. L. p. 1000, sec. 476.
In Steel v. Cazeaux, 8 Mart. (La.) 318, the court said:
“The general rule of evidence is, that a record of conviction, in a criminal prosecution, cannot be given in evidence in a civil suit for damages occasioned by the offense of which the party stands convicted. The reasons in support of this rule are, that it is res inter alios acta, and that the conviction may have been effected by testimony not admissible in the civil action.”
In Myers v. Maryland Casualty Co., 123 Mo. App. 682, in considering the competency of the record of a judgment in a criminal suit, the court said: “The proceedings in a criminal action must be regarded as res inter alios acta. In this country, the duty of prosecuting for public offenses is devolved upon a public officer chosen for the purpose instead of being left, as in England, to the voluntary action of the party injured. * * * The correct rule is that a judgment in a criminal prosecution cannot be received in a civil action to establish the truth of the facts on which it was rendered.” As the record in that case showed that the conviction was upon a plea of guilty by the defendant, it was held to be admissible in evidence, “as a solemn admission to be weighed by the jury in connection with all the other evidence in the case,” but, though admitted, should not be considered as conclusive.
In Greenleaf’s Treatise on Evidence (13th Ed.), sec. 537, there is this statement:
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Mr. Justice Taylor
delivered the opinion of the court.
i This is an appeal from a judgment in the sum of $1,000 in favor of the plaintiff and ag’ainst the defendant for an assault and battery.
The suit was begun on June 13, 1921. The declaration consists of three counts. The first count charged that the defendant shot and wounded the plaintiff. The second charged that the defendant assaulted her, struck her with a knife and with her fists, threw her down and kicked her. The third count charged that the defendant beat and bruised and wounded her. The ad damnum is $10,000.
On July 2, 1921, the defendant filed a plea of not guilty. On May 14, 1923, the plaintiff filed a replication. On the same day the case was called for trial and a jury sworn to try the issues. On the next day, the defendant, having obtained leave of court, filed an additional plea of son assault demesne, alleging that the plaintiff first assaulted her and in lawfully defending herself, “did commit the supposed trespasses in the said declaration mentioned.” On the same day, May 15, 1923, the plaintiff filed an additional replication to the plea of son assault demesne. That replication set up that at the March term, 1920, of the criminal court of Cook county, the defendant was indicted for assault with intent to kill the plaintiff herein, on October 23, 1919; that the defendant was arraigned and pleaded not guilty; that she was tried before the court without a iurv. a jury being waived; that the defendant interposed'the defense of necessary self-defense; that after hearing the evidence the court found the defendant guilty'o'f'-a-ss-aralt with intent to do bodily injury, and assessed a fine against her in sum of $300 and costs, which the defendant thereupon paid; that that assault for which the defendant was tried and found guilty in the criminal court was the same assault that was perpetrated upon the plaintiff herein on October 23, 1919; that the damages herein civilly sued for were caused by that assault; that the parties are the same in both cases; that the special plea of son assault demesne has been adjudicated and disposed of in the criminal court, as aforesaid; that the conviction of the defendant in the criminal court is a complete bar to the special plea. The plaintiff asked judgment that the special plea be quashed.
To that replication the defendant filed a general demurrer. The cause went to trial before court and jury, and at the close of the evidence an order was entered sustaining the defendant’s demurrer to the first replication, and giving the plaintiff leave to stand on that replication. That order contained also the following:
“And this cause coming on now to he heard upon the defendant’s demurrer to the plaintiff’s additional replication to the defendant’s special plea of justification heretofore filed herein, after arguments of counsel and due deliberation by the court said demurrer is overruled, thereupon at the close of all the , evidence, the court instructs the jury to find the defendant guilty, and the jury say: ‘We the jury find the defendant guilty and assess the plaintiff’s damages at the sum of One Thousand Dollars. ’ ”
The evidence of the plaintiff is that on October 23, 1919, the defendant shot at her three times, hitting her once; that she was injured so that she was taken to a hospital where she remained three weeks; that she was wounded in the right side and was in bed for three months and attended by a physician for six months. One Jennie Miele testified that she heard some shooting and turned round and saw the defendant shoot the plaintiff. Counsel for the defendant, upon cross-examination of the plaintiff, and upon the examination of witnesses called for the defendant, undertook to show that the plaintiff first assaulted the defendant and that the defendant acted in self-defense; that before she fired at the plaintiff the latter followed her up, on a public sidewalk, struck her with a stick, and fired two shots at her, but the trial judge, in view of the defendant’s demurrer to the additional replication which set up the conviction of the defendant in the criminal court, ruled that such evidence was incompetent; that evidence was only competent on the subject of damages.
On this appeal but one question is argued for the defendant, and that, in the language of the brief, is as follows:
“Was the trial court in error when it ruled that the Vconviction of the defendant in the criminal court forever barred her from proving under her plea of justification that she shot the plaintiff in self-defense?”
There is some confusion in the record as to the orders that were entered, but we shall assume, as - counsel have, that the rulings and judgment of the trial judge were based on the assumption that the admission of the conviction in the criminal court rendered unnecessary and incompetent further proof of the assault and battery.
The Criminal Code, ch. 38, div. 2, ¶ 630, Cahill’s Ill. St. 1923, provides as follows:
“Nothing in this Act contained shall be so construed as to prevent the party injured from having and maintaining a civil action for all damages and losses that he may have sustained in consequence of the commission of any criminal offense herein provided for; and no court shall allow or entertain the plea that the private injury is merged in the crime, or in any manner affected thereby: Provided, however, the record of conviction shall not be used as evidence in any civil action brought on any forged writing, or to recover the damages and losses sustained by the commission of any such criminal offense.”
It is frequently stated “that a judgment in a criminal prosecution is no bar to a subsequent civil action arising from the same prosecution, and that the record of the criminal cause is not competent evidence in the civil action.” 15 R. C. L. p. 1000, sec. 476.
In Steel v. Cazeaux, 8 Mart. (La.) 318, the court said:
“The general rule of evidence is, that a record of conviction, in a criminal prosecution, cannot be given in evidence in a civil suit for damages occasioned by the offense of which the party stands convicted. The reasons in support of this rule are, that it is res inter alios acta, and that the conviction may have been effected by testimony not admissible in the civil action.”
In Myers v. Maryland Casualty Co., 123 Mo. App. 682, in considering the competency of the record of a judgment in a criminal suit, the court said: “The proceedings in a criminal action must be regarded as res inter alios acta. In this country, the duty of prosecuting for public offenses is devolved upon a public officer chosen for the purpose instead of being left, as in England, to the voluntary action of the party injured. * * * The correct rule is that a judgment in a criminal prosecution cannot be received in a civil action to establish the truth of the facts on which it was rendered.” As the record in that case showed that the conviction was upon a plea of guilty by the defendant, it was held to be admissible in evidence, “as a solemn admission to be weighed by the jury in connection with all the other evidence in the case,” but, though admitted, should not be considered as conclusive.
In Greenleaf’s Treatise on Evidence (13th Ed.), sec. 537, there is this statement:
“It is obvious that, as a general rule, a verdict and judgment in a criminal case * * * cannot be given in evidence in a civil action, to establish the facts on. which it was rendered. If the defendant was con-vie ted, it may have been upon the evidence of the very plaintiff in the civil action; and if he was acquitted, it may have been by collusion with the prosecutor.” Citing Mead v. City of Boston, 3 Cush. (Mass.) 404.
In 5 Corpus Juris 685, it is stated that “the general rule is that, in civil actions for the recovery of damages occasioned by an assault and battery, the record of the conviction of the defendant in a criminal prosecution for the same offense is not competent evidence. ’ ’
In Freeman on Judgments, sec. 319, the following language is used: “The record of a conviction or of an acquittal is not, according to a decided preponderance of authority, conclusive of the facts on which it it based in any civil action.” Citing Betts v. New Hartford, 25 Conn. 180, 185; 1 Greenl. Ev., sec. 537; Corbley v. Wilson, 71 Ill. 209; Steel v. Cazeaux, supra; Mead v. Boston, 3 Cush. (Mass.) 404; Cottingham v. Weeks, 54 Ga. 275.
In Corbley v. Wilson, 71 Ill. 209, in an action of slander, for charging the plaintiff with the commission of a crime, to which the defendant pleaded the general issue and a special plea of justification that the words spoken were true, the court held that it was error to permit the plaintiff to read in evidence the record of an indictment against him for the same crime, and of his trial and acquittal. That decision, however, was based on the principle “that no man should be affected by proceedings to which he was a stranger.”
In Young v. Copple, 52 Ill. App. 547, the question was presented, “whether or not a plea of guilty to an indictment for an assault with a deadly weapon, with intent to inflict a bodily injury on the person of another, * * * estops the defendant, when sued in an action of trespass for damages for the same assault, from justifying the assault as having been made in the proper defense of his person or property.” The court in that case said:
“The law is that a judgment in a criminal case, though admissible to establish the fact of the rendition of the judgment, cannot be given in evidence in a civil action to establish the facts on which it was rendered.” Citing 1 Gfreenleaf on Evidence (12th Ed.), sec. 537; Freeman on Judgments (3d Ed.), sec. 319, and Corbley v. Wilson, supra.
The court, however, further said:
“It seems also to be the law that the record of a judgment in a criminal case, upon a plea of guilty, is admissible in a civil action against the defendant as a solemn judicial confession of the fact.”
No case in this State exactly in point has been cited or has been found, so that we are left to consider decisions of other judisdictions, the dicta of our own and the reasoning properly applicable to a situation of new impression. It seems at first blush that such a judgment ought to be admitted either as conclusive proof, or, at least, as competent proof subject to rebuttal. But, upon careful analysis, it is found that there may be quite substantial reasons why it should not be admitted as conclusive proof. The parties are not, in full truth, the same. A criminal prosecution by the State’s Attorney is not one by the plaintiff in the civil suit. That, however, where the defendant is found guilty, as here, does not seem, by itself, sufficient reason for excluding the judgment. There may be, nevertheless, as,regards the evidence that was addticed at the trial of the criminal case, some hardship. For example, the defendant though there found guilty may have been disappointed by the absence of witnesses, and in view of the fine or punishment probable may have been willing to go to trial and take his chances even though he believed himself innocent. Many possible reasons might be assigned why he went to trial and failed, even though innocent. Whether such reasoning .is entirely sound, we a:re not sufficiently convinced to be_ dogmatic about it. Inasmuch, however, as the principle‘has“b’een recognized so often, and frequently announced in many jurisdictions as an unqualified canon of the law of evidence, we feel that it is more in the interest of exact justice, if not of expediency, to err in its recognition and apply it here than to repudiate it. It may he urged that it would he better to admit the record of the conviction "in' evidence, not as conclusive, but subject to rebuttal. The trouble with that argument is that if allowed in evidence before a jury, for example, it would unquestionably, at least in all probability, have such weight that the seeming privilege of rebuttal would be entirely nugatory.
"After careful consideration, we are of the opinion that error was committed in overruling the demurrer to thó additional replication.
The judgment will be reversed and the cause remanded.
Reversed and remanded.
O’CorraoR, P. J., concurs.