Page:The Green Bag (1889–1914), Volume 19.pdf/666

 NOTES OF RECENT CASES the time, the date and place of the birth of the child, the name of each of the parents, the maiden name of the mother and the name of the child. It appears that in making the certificate the physician was imposed upon by false statements of the mother as to the paternity of the child and certified con trary to the fact that complainant in this suit was the father of the child. This suit was brought to obtain the cancellation of defendant's fraudu lent record and the destruction of its evidential character as to the paternity of the infant. The court held that a court of equity has jurisdiction, first, to cancel such certificate or so much thereof as relates to and charges upon the complainant the paternity of the child; second, to require the medical superintendent of the - bureau of vital statistics to indorse the fact of the cancellation on the record; third, to enjoin the use of the original certificate or copies thereof, as evidence; and fourth, to enjoin the mother and the child from claiming for said child, by virtue of said certificate, the status of a lawfully begotten child of the complainant. The court, however, points out that the decree in this case does not preclude a trial of the question of paternity of the child but the effect of the decree is to give notice to the world that the record is a fraudulent one and is not entitled to be received in evidence in a court of the state to prove the facts therein contained, nor entitled to full faith and credit in other states under the Federal Constitution. The court states that the case presented is novel in incident, though not in principle, but says that the absence of precedents or novelty in incident presents no obstacle to the exercise of the jurisdiction of a court of equity. As precedents, the court cites Callender v. Callender, 53 How. Pract. (N. Y.) 364, and refers to Meldrum v. Meldrum, 11 L. R. A. 65, 15 cols. 478, 24 Pac. 1083. The opinion of Dill, J., in this case contains an interesting dictum adverse to the doctrine that equity is without jurisdiction except for the pro tection of property rights. On this subject see note to Chappell v. Stewart, 37 L. R. A. 783, and the comments of the writer in 16 Cyc 120. F. J. EVIDENCE. (Judgment.) Tex. Ct. of Crim. App. — A nice point as to the admissibility of evidence is presented in Busby v. State. 103 S. W. Rep. 638. This was a prosecution for embezzle ment of state funds by an employee of the state. Prior to the trial of the criminal case, the state had obtained a judgment in a civil action by it against accused and his bondsmen. This judg ment was admitted in evidence against accused in the criminal case. On the original hearing the court held that the judgment was admissible, but

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on rehearing the court comes to a different con clusion, Judge Brooks, however, dissenting. As principal authorities for the decision on rehearing, the court cites, Queen v. Moreau, Levin A. and E. 128; Britton v. State, 77 Ala. 202. When evidence of a judgment is offered to estab lish some fact that was decided by that judgment, there is always the preliminary question concern ing the admissibility of the evidence offered to prove the judgment. This preliminary question usually raises no difficulties as a properly certified copy of the record of the judgment is offered and this is admissible under the hearsay exception admitting public documents. Wigmore, Evidence, $1681: Black, Judgments, §604. But granting that it is offered to establish the judgment by competent evidence, the question remains whether the fact of the judgment is one proper to be proven. It may be provable either (1) because it is a fact in issue, or (2) because it is evidence of some fact in issue. When the judgment is to be used as making some fact involved in the present case res judicata then the judgment is in issue. The judgment is not evidence of such a fact: it makes the truth or falsity of that fact un'mportant. The fact of the judgment is substituted as the issue for the fact which it adjudicated. The law deter mining whether the judgment is to have that effect and become the fact in issue is the law of judgments, not the law of evidence. Wigmore, Evidence, Si 347. The final opinion of the Texas court on this point in the law of judgments was no doubt right. The success of the state in the civil action where a preponderance of the evi dence would give it the verdict should not adjudi cate the fact of defalcation for the purposes of a criminal action in which the state must establish the fact beyond a reasonable doubt. Some related questions are interesting. Sup pose the accused had won in the prior civil action, would not the fact of his innocence be adjudicated for all subsequent actions whether civil or crimi nal? If the state could not prove his guilt by a preponderance of the evidence, how can it hope to prove it beyond a reasonable doubt? It seems that the fact should be considered res judicata though the court states that such is not the law. 103 Southwestern Rep. 650. The only ground for such an opinion seems to be the statement, gener ally true, that unless the fact will be res judicata no matter which way it is decided it will not be res judicata at all. Black, Judgments, §548. It may be questioned whether the principle under lying that statement applies to the case we are discussing. The case of People v. Kenyon, 93 Mich. 19, is clearly distinguishable on grounds given by the court.