Thoroughgood v. Anderson

5 Del. 97

• Court: Superior Court of Delaware
• Decided: July 1, 1848
• Status: Published

Opinion

The Court

entered a decree of freedom on the proof of exporta-

tion ; from which an appeal was taken to the Court of Errors and Appeals; where the judgment was afterwards affirmed. [See post, June term, 1849.]

Chief Justice Booth said that if the position taken for the defendant was correct, that because the exportation was a misdemeanor, .no other evidence of the fact could be received, on a petition for freedom, than the record of the conviction of the offender, it would also follow that because an assault and battery is a misdemeanor, no other evidence of the fact of beating would be admissible in a civil suit for damages than the verdict and judgment against the offender in the criminal case. Now precisely the opposite of this, is the correct doctrine of the law ? Whenever the same act which inflicts an injury upon an individual-, also constitutes an offence against the public peace, a civil suit may be prosecuted to judgment, before, after, or without an indictment; except in those cases of felony, where the civil injury is merged in the criminal offence. But in no case, is the verdict and judgment in a criminal prosecution, admissible in evidence in a civil suit, to prove the same facts upon which the conviction was founded. Such is the law as laid down by Starkie, Phillips and Greenleaf on evidence.

Moore vs. Bastard, 2 McArthur on Courts Martial 194, will not bear out the application which was made of it in the argument. Colonel Moore commanded a regiment quartered at Bristol, in England. He preferred charges against some officers for disobedience to an order; in consequence of which, a court martial was convened. Sergeant Major'Warden was called as a witness, by the prosecutor, Colonel Moore. The court, from some apparent contradiction in his testimony, which was explained at the time, committed Major Warden to the guard-house for perjury, and put Colonel Moore under close arrest, for subornation of perjury. Colonel Moore brought an action for false imprisonment, against Colonel Bastard, the president of the court martial. Sir James Mansfield directed the jury to find a verdict for the plaintiff, because “the arrest was totally illegal.”. Why? Because neither by the mutiny act, nor by the acticles of war, had a military court martial any power to try the offence of perjury; and, therefore, to inflict a punishment without any trial, and when, as Sir James Mansfield observes, “there was no perjury, nor any thing like perjury, was as extraordinary a mistake as any court martial could fall into.” In the case of Sergeant Grant vs. Gould, 2 Sen. Black., Lord Loughborough says, “ the object of the mutiny act is to create a court with authority to try those who are a'part of the army; and the object of the trial is limited to breaches of military duty; (page 100)—and therefore ordinary offences against the civil peace and general law of the land, must be tried in the common law courts, [p. 99.] If the Superior Court, upon hearing the petition of Sarah Thoroughgood, should undertake to try, convict, fine, and imprison Anderson, for the criminal offence of exporting a slave, the principles laid down by Sir James Mansfield and Lord Loughborough, would apply.

McArthur (vol. 2, 193) seems to consider that a Naval Court Martial has authority to punish for perjury committed by a witness in the course of his examination before such a court. Suppose it to be so; and suppose further, that an officer attached to a British squadron, while cruising on the high seas, is examined "as a witness before a naval court martial; and afterwards it is ascertained that he committed perjury. Charges are preferred against him for conduct disgraceful to an officer and a gentleman. The specification is, that upon his examination as a witness before the court martial, he prevaricated and committed perjury; if no other evidence is admissible than the record of his conviction before a common law court, thd offender must be acquitted and escape punishment ;:j or •else be sent to England to be indicted and tried; and if convicted, then to be tried by a Naval Court Martial, and punished a second time for the same offence.

The illustration drawn from the supposed law making “the commission of larceny, perjury, or any other felony, or infamous offence, a sufficient cause of divorce from the party committing the same,” does not, in my opinion, help the argument. In such a case, the commission of the offence would not violate any civil right of the other party. In the proceeding for a divorce, it would be unnecessary to prove any of the facts or circumstances on which the conviction was founded. Nothing else would be allowed, or be requisite, than to prove the mere fact of conviction; which could be done only by the production of a copy of the record of the judgment, which would be conclusive; and the divorce must follow, as one of the legal consequences of the conviction. Another legal consequence is, that the party is rendered incompetent to be a witness; and by the Constitution of this State, he is deprived of the right of suffrage. In all such cases, the only competent evidence is the record of the verdict and judgment, to prove the mere fact that such a conviction took place. When that is' proved, the judgment is conclusive upon all its legal results.

My opinion therefore, is, that a decree should be entered, that Sarah Thoroughgood is entitled to her freedom.