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(114 Okla. 254, 246 Pac. 595.)

Finding no reversible error, the judgment is affirmed.

Nicholson, Ch. J., and Branson, Lester, and Hunt, JJ., concur.

Harrison, Phelps, and Riley, JJ., dissent.

Petition for rehearing denied March 16, 1926.

ANNOTATION.

Use in civil case of testimony given in criminal case by witness no longer

accessible.

[Evidence, §§ 1130, 1132.]

Against person who was defendant in criminal case.

In some jurisdictions it is held that testimony given on the trial of a criminal case cannot be used against the defendant therein on the trial of a civil action involving the same transaction, though the witness is dead or otherwise not procurable, there being no identity of parties and issues. McInturff v. Insurance Co. of N. A. (1910) 248 Ill. 92, 140 Am. St. Rep. 153, 93 N. E. 369, 21 Ann. Cas. 176; Harger v. Thomas (1862) 44 Pa. 128, 84 Am. Dec. 422. See Ferguson v. Barber Asphalt Paving Co. (1915) 59 Pa. Super. Ct. 386, which went off on a question of preliminary proof of the inaccessibility of the witness. See also the reported case (CONCORDIA F. INS. Co. v. WISE, ante, 456), overruling Ray v. Henderson (1914) 44 Okla. 174, 144 Pac. 175.

In Harger v. Thomas (Pa.) supra, it was held that testimony given on the trial of the payee of a note for forging the signature of the maker was not admissible against the payee in an action by him on the note, though the witness was dead. The court said: "A criminal prosecution, although instituted by an individual, is not in any sense an action between the person instituting it and the prisoner. It is not an action at all. That is defined to be 'the legal demand of one's rights, or the form given by law for the recovery of that which is due.' Bouvier's Law Dict. A criminal prosecution is also defined to 'be a prosecution in a court of justice, in the name of the government, against one or more individuals accused of a crime.' 1 Ch. Crim. Law. The issue is between the government and the prisoner on a question of the guilt or

innocence of the latter. It is not a question of property. Very different is the issue, as also the parties, in a civil suit to recover on the forged instrument. There the defendant is clear of the obligation, let the forgery be by whom it may, and the guilt or innocence of the plaintiff is not necessarily involved."

In McInturff v. Insurance Co. of N. A. (Ill.) supra, it was held that on the trial of an action on a fire insurance policy the testimony of a witness since deceased, given on a prosecution of the insured for arson in setting fire to the insured property, was not admissible.

In Crews v. Crews (1918) 175 N. C. 168, 95 S. E. 149, it was held to be error to decide a suit for alimony on evidence given on a previous prosecution of the husband for nonsupport, but in that case it appeared that the witnesses were available, and the precise point herein annotated was not directly considered.

The weight of authority seems to be to the effect that, on a proper showing of inability to procure the attendance of a witness at the trial of a civil case, his testimony given in a criminal prosecution involving the same transaction is admissible against the person who was defendant therein. Gavan v. Ellsworth (1872) 45 Ga. 283; Heatley v. Long (1910) 135 Ga. 153, 68 S. E. 783; Kreuger v. Sylvester (1897) 100 Iowa, 647, 69 N. W. 1059; Profitos v. Comerma (1916) 94 Misc. 334, 158 N. Y. Supp. 369; Huempfner v. Bailly (1916) 36 S. D. 533, 156 N. W. 78. See also Charlesworth v. Tinker (1864) 18 Wis. 633.

In Gavan v. Ellsworth (Ga.) supra, it was held that on the trial of a civil

action for assault and battery the testimony of a witness since deceased, given on the commitment trial of a criminal prosecution of the defendant for the same assault, was admissible. The court said: "The issue is precisely the same except that in the criminal trial the intent of the defendant was more prominently matter for consideration than here. And the parties were, for this purpose, substantially the same. The defendant was there in propria persona, and the plaintiff the injured party represented by his protector, the state. The authorities seem to make the matter turn upon the opportunity for cross-examination. This the defendant, against whom the testimony is now offered, had fully, on the commitment trial."

That decision was followed in Heatley v. Long (1910) 135 Ga. 153, 68 S. E. 783, wherein it was held that where a person charged with criminal trespass defended by setting up title in himself, the testimony given by a witness at that trial might, the witness having since died, be read on the trial of an action of ejectment against the person who was defendant in the trespass case to recover from him the premises in question.

In Profitos v. Comerma (1916) 94 Misc. 334, 158 N. Y. Supp. 369, it was held that in an action to recover the value of certain building material the testimony of a witness since deceased, given on the trial of a proceeding before a magistrate to commit the defendant for unlawfully taking the same material, was admissible on behalf of the plaintiff. The court said: "The question is therefore presented whether the testimony of the deceased witness, Kahn, under these circumstances, was permissible under § 830 of the Code of Civil Procedure, which, so far as material, is as follows: 'Where a witness has died the trial of an the testimony of the taken . . at the may

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action, decedent former trial or hearing be given or read in evidence upon any subsequent trial or hearing of the same subject-matter in

the same or another action or special proceeding between the same parties to such former trial or hearing or their legal representatives, by either party to such new trial or hearing

. We have no difficulty in deciding that this trial involved 'the same subject-matter' that was presented on the hearing of the criminal charge. The one question of doubt is whether this action may be considered to be between the same parties as those in the criminal prosecution. The only suggestion to the contrary is that in a criminal action the people of the state are plaintiff. In so far as concerns the criminal prosecution here shown, that is so only in the most limited sense, as a warrant of arrest to bring one accused of crime before a magistrate is not a criminal action, but is a proceeding instituted solely upon an information, and in this case that of these plaintiffs as complainants. Concerning the effect of § 830, supra, of course, the defendant here is the same as the defendant before the magistrate. There is no dispute but that Kahn is dead, and that he testified upon the hearing of the criminal charge. There is no dispute but that the complainants there and the plaintiffs here are the same, and likewise that the subject-matter is the same, namely, defendant's possession and title or right of disposition of the building blocks. . . . Nor does the appellant make any claim upon appeal, nor did he contend upon the trial, or even suggest, that he did not have both the right and opportunity of cross-examining the witness Kahn as to the facts which were offered on this trial, as testified to by Kahn on the hearing before the magistrate."

In Huempfner v. Bailly (1916) 36 S. D. 533, 156 N. W. 78, it was held that on the trial of an action for seduction testimony given on a previous prosecution of the defendant for statutory rape, based on the same transaction, was admissible, the court saying: "At the trial of the criminal action appellant had the right, which he exercised, of cross-examining this witness. Evidence of what this witness testified to upon such former

trial was therefore competent, after her absence had been properly accounted for, or lack of such accounting waived through failure to interpose proper objection."

So, in Kreuger v. Sylvester (1897) 100 Iowa, 647, 69 N. W. 1059, it was held that on the trial of a civil action for assault, testimony given at a trial of a criminal prosecution for assault with intent to do great bodily harm was admissible, on proof that the witness was no longer available.

In Ray v. Henderson (1914) 44 Okla. 174, 144 Pac. 175, which is overruled by the reported case (CONCORDIA F. INS. Co. v. WISE, ante, 456), it was held that the testimony of a witness since deceased, given on the trial of a prosecution for assault and battery, was admissible against the defendant in a civil action for the same assault, the court concluding a strongly reasoned opinion by saying: "There seems to be, as will be observed from the above authorities, a growing tendency to make the test as to the admissibility of such evidence depend upon the 'right and opportunity to cross-examine.' We think this test, most assuredly, should be applied, but not to the exclusion, or even to the diminution in value, of the other essentials, such as a reasonable identity of issues and parties, etc. And, upon applying all of the tests required, we are constrained to hold that the evidence admitted in this case was properly admitted. The assaulted woman prosecuted the criminal charge, not in name, it is true, for all prosecutions must run in the name of the state. The offense is against the state and all the people thereof, actually as well as theoretically; all the people are aggrieved and are interested, at least theoretically, in the prosecution; but the victim of the assault has actually a greater interest, a personal present concern, in the prosecution and conviction of the assailant at whose hands she has suffered. She takes her grievance to the law officer of the county, makes complaint under oath, and the criminal charge is filed by her protector, the state, in its name; the prosecuting witness, the assaulted person, 46 A.L.R.-30.

has an interest in the prosecution, and, for all practical purposes, may be considered substantially a party thereto."

Against person who was not defendant in criminal case.

Of course, where the testimony at a criminal trial is offered in a subsequent civil action against a person who was not the defendant in the criminal case, the reasons for its exclusion are stronger than where it is offered against the former defendant. Thus, in Jackson v. Brady (1917) 140 La. 746, 73 So. 850, an action for malicious prosecution of the plaintiff, it was held that testimony given on the criminal prosecution in question, by a witness who was not available at the trial of the civil action, was not admissible against the defendant, the court saying: "The defendant was no party to the criminal prosecutions, made no appearance at the trial, and had no opportunity to cross-examine the witness."

In Milne v. Sanders (1921) 143 Tenn. 602, 228 S. W. 702, a proceeding under the Workmen's Compensation Act based on the death of an employee from injuries received by fire in the course of his employment, the employer sought to introduce the testimony given on the trial of a fellow employee for having feloniously caused the fire. Holding that the testimony was properly excluded, the court said: "The plaintiffs in the present case were not parties to the criminal case, had no opportunity to cross-examine witnesses in the latter case, nor to introduce evidence to rebut that offered by the state."

In Charlesworth v. Tinker (1864) 18 Wis. 633, on trial of a civil action for assault and battery, evidence of a witness since deceased, given on a prosecution of the defendant for the assault, was held to be admissible on behalf of the defendant. That decision turned on a statute providing that the complainant in a criminal prosecution for assault and battery shall have control of the prosecution and may examine all witnesses. While this fact is referred to in the reported

case (CONCORDIA F. INS. Co. v. WISE), and elsewhere, as depriving the decision of its value in cases where no such statute is applicable, it may be doubted if it does more than distinguish the Charlesworth Case from other cases involving the admissibility of the class of testimony under consideration against the complainant in the criminal case. So far as its admissibility against the defendant therein is concerned, the case lays down this rule: "If the party had this power of cross-examining the witness on the former trial, and was legally called upon to do so, we can then see no danger or hardship in admitting the evidence in a subsequent suit after the decease of the witness." This power the defendant in a criminal case has, and the statute did no more than to give the complainant the same power.

In Melen v. Andrews (1829) Moody & M. (Eng.) 336, an action for malicious prosecution, the plaintiff sought to introduce testimony of a third per

son before the magistrate on the laying of the information which was the basis of the action, and it was held that it was not admissible. It is to be observed that there was no point made as to the accessibility of the witness, and apparently it was not the modern rule as to the former testimony of an absent or deceased witness which was invoked. Parke, J., said: "It is true that the plaintiff might have cross-examined, or commented on the testimony; but still, in an investigation of this nature, there is a regularity of proceeding adopted which prevents the party from interposing when and how he pleases, as he would in a common conversation. The same inferences, therefore, cannot be drawn from his silence, or his conduct in this case, which generally may in that of a conversation in his presence; and as it is only for the sake of these inferences that the conversation can ever be admitted, I think it is better to refuse the evidence now offered." W. A. S.

HEBER I. BURNINGHAM, Appt.,

V.

JAMES J. BURKE, Receiver of Utah Steel Corporation et al., Respts. Utah Supreme Court - January 25, 1926.

Corporations, § 190

(— Utah, 245 Pac. 977.)

rescission of subscription after insolvency.

1. One may rescind a stock subscription for fraud after the corporation has become insolvent and a receiver has been appointed, if he has been guilty of no laches, and acts promptly and with reasonable diligence, and is otherwise entitled to rescind.

[See annotation on this question beginning on page 484.]

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Limitation of actions, § 46 laches in moving to rescind stock subscription.

9. A subscriber to stock of a corporation is not guilty of laches in failing to move for rescission of his contract before the appointment of a receiver for the corporation a few months later, where he did not discover the falsity of the representations until after the receiver was appointed, and he was in no way connected with and did not participate in any of the affairs of the corporation, and did not attend meetings, had no knowledge of its business, and received no benefits.

[See 7 R. C. L. 242; 2 R. C. L. Supp. 323.]

Corporations, § 190 right to rescind subscription contract.

10. One cannot rescind a contract

for the purchase of corporate stock for fraud, either at law or in equity, if he has been guilty of laches or of unreasonable delay, either in discovering the fraud, or in repudiating the contract after its discovery.

[See 7 R. C. L. 242; 2 R. C. L. Supp. 323; 5 R. C. L. Supp. 397.]

Corporations, § 190 notice of fraud when exists.

11. If there are facts which ought to put a person of ordinary prudence on inquiry, a purchaser of corporate stock will be charged with such knowledge as would have been obtained upon such inquiry.

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Limitation of actions, § 46 when laches exists.

12. Laches cannot be imputed to one who was ignorant of the facts and for that reason failed to assert his rights, and, on such ground to bar relief against fraud, the laches must not only consist of delay, but of a delay which worked a disadvantage to the opposite party.

[See 10 R. C. L. 405; 2 R. C. L. Supp. 1012; 5 R. C. L. Supp. 554.] Limitation of actions, § 7-delay as laches.

13. Mere delay, unless unreasonable or inexcusable, is not enough to constitute laches which will bar relief.

[See 10 R. C. L. 396; 2 R. C. L. Supp. 1010; 4 R. C. L. Supp. 664; 5 R. C. L. Supp. 553.]

Corporations, § 191- rescission of

subscription as against existing creditors.

14. One defrauded into subscribing for the stock of a corporation may rescind as against existing creditors, even if the corporation has passed into the hands of a receiver.

[See 7 R. C. L. 242; 2 R. C. L. Supp. 323.] Corporations, § 191- right to rescind subscription against subsequent creditors.

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15. One defrauded into subscribing for the stock of a corporation cannot rescind as against creditors who became such in ignorance of the fraud, and on the strength of, or in reliance on, the stock subscription, in good faith, and in some considerable amount, before the insolvency of the corporation or appointment of the receiver.

[See 7 R. C. L. 242; 5 R. C. L. Supp.

397.]

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