amount of the insurance, and the court ren- | permitting the appellees to read as evidence dered a judgment accordingly, but upon an appeal to this court the judgment was reversed, and the consolidated cases remanded for further proceedings. Thereafter each of the appellants tendered and offered to file an amended answer, in which it was alleged that since the pendency of the litigation an indictment had been returned against the appellee B. W. Wright in which he was charged with the crime of willfully and unlawfully setting fire to and causing to be burned the tobacco house or warehouse in which the tobacco of the appellees was stored, and that there was insurance upon the house, being the crime denounced by section 1169, Kentucky Statutes, and that he had been put upon trial upon the indictment, and convicted and sentenced to a term in the penitentiary, that he had appealed from the judgment of conviction to this court, and the judgment was affirmed, and that the contents of the barn, on account of the destruction of which by fire the appellees were maintaining the suits, were consumed by and in the same fire which destroyed the barn, and for the setting of which the appellee Wright had been tried and convicted, and pleaded the judgment of the commonwealth of Kentucky against B. W. Wright as a complete bar to recovery by appellees in these consolidated suits. The appellees objected to the filing of these amended answers, and the court sustained their objections and refused to allow them to be filed, to which the appellants each saved an exception. to the jury the transcript of the evidence given by Goldie Ford upon a former trial. Fourth. Because of errors made by the court in its rulings upon the admission and rejection of evidence offered upon the trial. Fifth. Because the court erred in not permitting the appellants to file their amended answers, in which they relied for a defense upon the judgment which adjudged B. W. Wright to be guilty of setting fire to and burning the barn and tobacco. Sixth. Because of the misconduct of the jury. Seventh. Because the verdict was flagrantly against the evidence, indicating that the jury was actuated by passion or prejudice. Eighth. Because of newly discovered evidence. Ninth. Because the jury, after being ordered to be kept together in the custody of the sheriff, were permitted to separate. the court erred to their prejudice in overrul[1] The contention of the appellants that ing their motion to file the amended answers, in the fifth ground for a new trial will be first considered, because, if the judgment therein pleaded and relied upon as a bar to appellees' recovery constituted such bar, it completely disposes of the case, and no further questions need be considered. It will be borne in mind that the original answers presented the defense that the appellees had willfully burned the barn and its contents, and there is no doubt that such is a good and Thereafter another trial was had before sufficient defense, if supported by the necesthe court and a jury, and at this trial a sary evidence, to the cause of action stated large number of witnesses were introduced by appellees in their petitions. It may also and evidence heard upon the issues made as be conceded that, if one of the parties willto the amount and value of the tobacco fully burned the barn and its contents, they which was burned and damaged, and as to could not as partners recover upon the poliThe conviction of the whether or not the barn was set fire to by cies of insurance. the appellees and the contents caused to be crime denounced by section 1169, Kentucky burned by them or either of them. The trial Statutes, based upon the charge in the inresulted in a verdict by the jury in favor of dictment that B. W. Wright and others asthe appellees, and upon this verdict the court sociated with him willfully and unlawfully rendered a judgment in favor of appellees conspired together to do so, and in furtheragainst the Citizens' Fire Insurance Com-ance of such conspiracy set fire to and burnpany for $1,000, the Old Colony Insurance ed the barn, was had in an action by the Company for $1,000, the People's National commonwealth of Kentucky against B. W. Fire Insurance Company for $1,000, and the Liverpool & London & Globe Insurance Company for $2,000. The appellants filed grounds and moved the court to grant them a new trial, which was refused, and to which they excepted, and they have now appealed to this court. Wright, and in which neither the appellants nor the other partner, Allen, were parties, either of record or otherwise. The proceeding by the state was for the purpose of redressing a wrong which Wright had committed against it. If the trial of Wright upon the indictment had resulted in an acquittal, A reversal of the judgment is sought upon could he and Allen then have offered the the following grounds: judgment of acquittal as a bar to the defense First. Because of misconduct of appellees' attorneys in the argument of the case before the jury. Second. Because of the misconduct of the attorneys for the appellees in their efforts to wrongfully influence the jury in its decision upon the issues of the case. whom a recovery in damages is sought for an alleged assault or battery plead a judgment of acquittal upon an indictment based upon the same facts, in bar of the plaintiffs recovery? Or could one seeking the recovery of damages for an assault and battery plead a judgment of conviction of the defendant upon an indictment based upon the same facts, in bar of defendant's plea of son assault demesne, or a plea traversing the assault and battery? In the first instance, such judgment could not be pleaded, because the plaintiff was not a party to the action in which the judgment was rendered, and, in the second instance, it should not be allowed, because the plaintiff was not in any wise prejudiced, nor any right of his determined by the judgment, nor would he have been prejudiced, if the judgment had been one of acquittal, and not a conviction. To hold that the judgment of conviction against B. W. Wright was a bar to appellees' cause of action in the case at bar would have been to estop the appellees to assert their cause of action. The rule is that estoppels must be mutual. Bridges v. McAlister, 106 Ky. 791, 51 S. W. 603, 21 Ky. Law Rep. 428, 45 L. R. A. 800, 90 Am. St. Rep. 267; Chiles v. Conley, 2 Dana, 21. In 23 Cyc. 1238, the doctrine is thus stated: "It is a rule that estoppels must be mutual; and therefore a party will not be concluded against his contention by a former judgment unless he could have used it for a protection or as the foundation of a claim, had the judgment been the other way; and, conversely, no person can claim the benefit of a judgment as an estoppel upon his adversary unless he would have been prejudiced by a contrary decision of the case.' 99 In 23 Cyc. 1237, it is said: "To constitute a judgment an estoppel there must be an identity of persons as well as the subject-matter; that is, it is necessary that the parties as between whom the judgment is claimed to be an estoppel must have been parties to the action in which it was rendered, in the same capacities and in the same antagonistic relation, or else they must be in privity with the parties in such former action." In American & English Encyclopedia of Law, vol. 24, p. 778, the following rule is stated: "The rule is commonly laid down that, in order to render a matter res judicata, there must be a concurrence of four conditions, viz.: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; (4) identity of the quality in the persons for or against whom the claim is made." In the volume supra it is said: In this jurisdiction it has, however, been held that, although the parties were the same and the actions based upon the same set of facts and circumstances, a judgment of acquittal in an action penal in its character was not a bar to a civil action. Ellison, etc., v. City of Louisville, 31 S. W. 723, 17 Ky. Law Rep. 593. The court rested its decision upon the fact that a different weight of testimony was required for a conviction in the penal case from that required for a recovery in the civil case. If Wright had been acquitted, instead of convicted, of his guilt of the indictment against him, he could not have used the judgment as a bar to appellants' defense that he burned the barn and its contents, because appellants were not parties to the action in which he was convicted, and hence could not be prejudiced thereby, and the judgment lacked mutuality as an estoppel, and, further, the parties to the action at bar were not the same as in the case in which Wright was convicted. The rules above announced are founded upon many reasons which are not necessary to be enumerated here, but suffice it to say that they have been so long established that they cannot now be called in question. In the case of Cooper v. Commonwealth, 106 Ky. 909, 51 S. W. 789, 59 S. W. 524, 21 Ky. Law Rep. 546, 45 L. R. A. 216, 90 Am. St. Rep. 275, relied upon by counsel for appellants, the parties were the same and occupying the same antagonistic relation to each other as in the case wherein the judgment was held to be a bar to a proceeding in the case supra, and the cause of action was the same in each case. The same was true of the case of Petit v. Commonwealth, 57 S. W. 14, 22 Ky. Law Rep. 262, and hence neither of those decisions can have any application to the case at bar. As to the case of Waddle v. Wilson, 164 Ky. 228, 175 S. W. 382, counsel overlook the fact that this was a suit against a policeman for damages for alleged false imprisonment, and that in an action of this character, or one for malicious prosecution, on account of the nature of the actions, a rule peculiar to such actions applies to the efficacy of the judgment which terminates the proceedings which follow the alleged false imprisonment or malicious prosecution. In actions of this character it is necessary to show the termination of the proceedings complained of. If an action for malicious prosecution, the com“A judgment in a criminal prosecution consti- plainant must show that the prosecution of tutes no bar or estoppel in a civil action based which he complained terminated favorably to upon the same facts or transactions, and con- him, or that his conviction was procured by versely of a judgment in a civil action sought to perjury or corrupt practices, and in an acbe given in evidence in a criminal prosecution. tion for false imprisonment the same rule * * * As between civil and penal actions, a judgment in one is, of course, no bar or estoppel applies. Duerr v. Ky. & Ind. Bridge & R. R. to the prosecution of the other, if the parties Co., 132 Ky. 228, 116 S. W. 325; Spring v. are not the same, identity of parties being a Besore, 12 B. Mon. 551; Hegan Mantel Co. fundamental requisite of res judicata, but, where In the two kinds there is a mutuality of parties, it has generally V. Alford, 114 S. W. 290. plicitly provides that such testimony can be used only "where the testimony of such The* witnesses cannot be procured, which fact must be made to appear satisfactorily to the court by the affidavit of the party desiring to use the same, or his attorney." There is no showing or attempted showing made that the testimony of this witness could not have been obtained by deposition or other way provided by law, and no excuse is made for the failure. No affidavit of any one was filed. The statements read to the jury as the evidence of this witness were material, and the permitting it to be read was prejudicial error. So. Ry. Co. in Ky. v. Owen, 164 Ky. 571, 176 S. W. 25. show that the prosecution against him or the arrest were made by an officer without a warrant and were without probable cause. existence of probable cause is a sufficient defense in either action. If the prosecution complained of or the arrest complained of terminated in the acquittal of the party of the crime or offense for which he was prosecuted or on account of which he was arrested, he can use the judgment in his favor as evidence that there was no probable cause for his prosecution or arrest, and if convicted of the crime for which he was prosecuted or arrested, the judgment is conclusive evidence of the existence of probable cause for his prosecution or arrest, unless in his petition he alleges and sustains by proof that his conviction was obtained by fraud, corruption, or perjured evidence. In the case of Waddle et al. v. Wilson, supra, the defendant by amended petition pleaded the conviction of the plaintiff of the offense for which he was arrested, and the lower court sustained a demurrer to the answer, and this court held that the amended answer presented a good defense. The case at bar was an action upon a contract between the appellees and appellants. [5] During the trial below, and while appellee B. W. Wright, who was offered as a witness for appellees, was testifying upon cross-examination, he was asked the following questions, which were objected to by appellees, and the objections sustained, and he was not allowed to answer the questions: (1) "Is it not a fact that you had a fight with G. R. Allen, the father of V. E. Allen, in the presence of R. F. Wright?" told said G. R. Allen that you and Vic [appellee (2) "Is it not a fact that during that fight you V. E. Allen] are as guilty of burning that barn as I am, and if I have to go to the penitentiary you will have to go, too?" Mr. Bob Wright ever came to see you in the in(3) "I will ask you, while you were in jail, if terest of G. R. Allen and asked you not to tell on them?" (5) "Is it not a fact that, while you were in jail after you had been convicted of burning the barn in which this tobacco was stored and sentenced to the penitentiary for said crime, you stated to Bob Wright that there were others just as guilty as you were?" [2] The court was not in error in overruling the motion to file the amended answers. Neither can the judgment of conviction of appellee Wright of the crime of burning the barn be used in evidence, except that appellants may prove the fact of his being con- Bob Wright by saying that they are just as (4) "If you didn't reply to that question of victed of a felony for the purpose of impeach-guilty of burning that barn as I am?" ing his testimony as a witness in the lawful way and under the proper admonition of the corrt. Without reciting any of the facts in evidence, it cannot be held that the verdict of the jury was flagrantly or palpably against the weight of the evidence, or that there is not sufficient evidence to support the verdict. [3] The contention that appellants should have a reversal of the judgment because of newly discovered evidence is not tenable. The affidavits on file show that the appel-cial lants had actual knowledge of the evidence which would be given by the proposed witness Gordon before the trial, and no reason is given for a failure to introduce him at the trial, except his claim that he would not testify because his statements would tend to incriminate him of the crime of assisting in burning the barn. His statements, as deHis statements, as detailed in his affidavit, would not be evidence of his own guilt, and there was no reason for the failure to offer him as a witness upon the trial. It is avowed that, if the appellee B. W. Wright had been permitted to answer, he would have answered "Yes" to each of the questions, and the court's refusal to allow him to answer is complained of as prejudierror. The first question relates to a matter not relevant to the issues in the case, and any answer which might have been made thereto was properly excluded. An answer to the third question was also properly excluded, because G. R. Allen was not a party to the suit, and the question does not indicate what or who it was that G. R. Allen wanted protected, and the appellees could not be affected by his statements. From an affirmative answer to the second, fourth, and fifth questions it might be inferred that Wright him[4] The court erred in permitting appellees self was guilty of burning the barn, although to read the transcript of the evidence of the admission that he used the language Goldie Ford, given upon a former trial of the there inquired about would not be an unecase. The appellants objected to the reading quivocal admission of guilt. The issue was of it, upon the ground that no effort had been whether or not the appellees, or either of made to secure her presence as a witness or them, burned the barn, and, Wright having her testimony at the trial, and the affidavit testified that he did not do so, an affirmative required by section 4643, Kentucky Statutes, answer to those questions would, without ex done except to set aside the verdict in their favor, and to impose the burden of another trial upon their clients. The statements of the counsel for appellees above set out were calculated to improperly influence the jury, and were prejudicial. Owensboro Shovel & Tool Co. v. Moore, 154 Ky. 431, 157 S. W. 1121. statements made in his direct examination, and the appellants were entitled to have his answers thereto for the purpose of affecting his credibility, or, if he denied that he used the language, to contradict him by proving that he did make such declarations. Wright being a party to the suit, the appellants were entitled to prove the declarations inquired about, if he made such, as evidence in chief, not as evidence conducing to prove that any other persons were guilty of burning the barn, but that Wright had done so, himself. [6] Another ground for a reversal insisted upon is the misconduct of the attorneys for appellees in making their arguments to the jury. The bill of exceptions shows that, while one of the appellees' attorneys was ad-ed the jury who heard this case in the cusdressing the jury, he said: "After this red-headed woman (Mrs. Lillie Riley Pearson) testified, and after I went to my hotel, I saw her prancing up and down in their office (pointing to the table where attorneys for defendant sat) with her handkerchief to her eyes." The witness Lillie Riley Pearson had testified upon the trial that she was at the house of Lee Perkins shortly before the burning of the tobacco, and that B. W. Wright came there, and he and Perkins discussed the decline in the price of tobacco, and Wright requested Perkins to assist him in the burning of his barn so that he could collect the insurance. There was nothing in the record to support the statement of Via. It was testimony given by him to the jury after the conclusion of the legal evidence in the case, without being under oath as a witness, and when there was no opportunity for a crossexamination. It could have no meaning, except to impeach the testimony of the witness, by impressing upon the jurors that she was acting under some character of duress imposed upon her by the attorneys for appellants or some one else. Although the statement was objected to, the court ignored the objection, and failed to admonish either the attorney or the jury in regard to it. Another of appellees' attorneys, in addressing the jury, said: "That fellow Peel (speaking of J. J. Peel, assistant fire marshal) has bought and by intimidation procured these witnesses for the defendant (speaking of Lee Perkins, Lillie Riley Pearson, and William Gambel)." There was nothing in the record to support this declaration. If the jury was impressed by it and believed it, it could have no other result than to cause the jury to discard the testimony of the witnesses referred to in making its verdict, and to discredit the witnesses for the appellant generally. The statement by the attorney was objected to at the time, but the court ignored the objection. When attorneys, in the argument of a case before a jury, make statements declaring things to be facts which the record does not support, either directly or inferentially, and which are calculated to improperly influence [7] The second and sixth grounds upon which a reversal is sought we will consider together, as both relate to the misconduct of the jury and some of the counsel of appellees with relation to the jury. These grounds are supported by affidavits, and no counter affidavits are filed which contradict any of the statements made. The court plac tody of an officer. It seems that there are no provisions of the Civil Code which confer authority upon the court to place a jury in a civil case in the custody of an officer and to require the jury to remain together until after the case has finally been submitted to it, but in Smith's Adm'x v. Middlesboro Electric Co., 164 Ky. 46, 174 S. W. 773, it was said that, if the court has the inherent right to require the jurymen in a civil case to remain together during the trial of the case and before its final submission, it must be considered to be a matter within the sound discretion of the court and in further. ance of justice, and it must be left in such cases to the sound discretion of the trial court to determine whether any violation of its order in reference to the jurors remaining together is prejudicial to the substantial rights of the parties. There does not seem to have been any substantial violation of the court's order to remain together on the part of the jury, but the officer having the jury in charge seems to have left the presence of the jury, at least upon one occasion, when he went to the room of appellees' attorney J. D. Via to procure whisky for the jury, and on another occasion to get a drink for himself. The uncontradicted statements in the affidavits show that frequently while the jury were hearing the case, and during recesses when it would be at the hotel where it was kept and where Mr. Via, one of the attorneys for the appellees, boarded, that Via was frequently seen to call a juryman from the others to a distance of 10 or 15 feet, and there engage in a conversation with the juror, which could not be heard by the affiants; that G. R. Allen, the father of appellee V. E. Allen, and another who was an attorney for appellee in the case, were from time to time during the trial seen mixing freely and conversing with the different jurors; that Mr. Via took an officer in charge of the jury to his room and gave him a drink of whisky; that on one occasion, in the lobby of the hotel, two of the jurymen requested Mr. Via to give them whisky, and requested the officer to allow them to go with Via to his liquors by or on account of such party. It need not be shown that the offending person understood the impropriety of his act, or that any juror was actually influenced thereby." request of several jurymen, the officer in | juror or jurors were furnished with intoxicating charge went to Via's room and bore to him the request of the jurymen to send them whisky; that Via said that he did not have the whisky then, but would have it later, and showed him a drawer in which he would find it, and in a few minutes the officer returned to Via's room and found in the drawer a quart bottle which was filled a little over one-half with whisky, and which he took to the jury, and the jurymen drank it upon that night before retiring and on the next morning. The mere fact that jurymen have Here an attorney for the appellees, whom that the jury were put in charge of an ofwe must presume had knowledge of the fact ficer and directed to remain together for the ficer and directed to remain together for the purpose of preventing improper influences the presence of the jury and go with him reaching them, invites the officer to leave to his room, upon one occasion at least, and then engages in plucking different members of the jury away from their fellows and engages them in conversations which cannot in treating them with whisky, although at be heard by persons 10 or 15 feet away, and their solicitation. Am. Dec. 200, the court said: used intoxicating liquor during a trial, but not to such an extent as to be under its influence while hearing the testimony or considering of the verdict, has never been held a sufficient ground upon which to set aside the verdict of the jury. Gordon v. L., St. L. & G. Ry. Co., 29 S. W. 321, 16 Ky. Law Rep. 713; Smith's Adm'x v. Middlesboro Electric Co., 164 Ky. 46, 174 S. W. 773; Perry v. Bailey, 12 Kan. 539. Whether any improper influences were brought to bear upon the jury, or whether by the actions and conduct detailed in the affidavits anything improper or wrong occurred or was intended, cannot be known either on the part of the jurymen The affidavit of J. R. Johnson, one of the or Mr. Via, but the facts and circumstances, jurors, is not considered by us. Steel's Heirs none of which are denied or explained, in-v. Logan, 3 A. K. Marsh. 397; Allard v. dicate a purpose and attempt to practice up- Smith, 2 Metc. 297; Lucas v. Cannon, 13 on the jury for the benefit of appellees' cause. Bush, 650; Doran v. Shaw, 3 T. B. Mon. In 29 Cyc. 803, it is said: "It is generally ground for a new trial that members of a jury were entertained or treated during the trial by the successful party, or by his attorneys or agents, and especially that a "It is insisted that the juror was not, in fact, influenced, and that justice has been done between the parties. It may be so; but it may be useful to the party to learn that a good cause may be injured, but cannot be promoted, by conduct of this sort, and to the public generally, to know that it will be tolerated in no case whatever." 415. For the reasons indicated, the judgment is reversed, and the cause remanded for proceedings consistent with this opinion. |