VI. RECOVERY IN A CIVIL ACTION.

155. In General.—On a criminal prosecution, it is no defense that the person injured has recovered damages or been defeated in a civil action.

If an action is brought against a wrongdoer to recover damages for the wrong, a judgment either for the plaintiff or for the defendant is a bar to any further action between the parties for the same wrong. But when a tort is also a crime, neither a recovery by the party injured nor a judgment against him in a civil action will bar a prosecution by the state for the wrong and injury to the public. Thus, on a prosecution for larceny, or a kindred crime, the fact that the property has been recovered by the owner in an action of replevin, or that its value has been recovered in trespass or trover, is no defense.177 The same is true of prosecutions for assault and battery, libel, nuisance, etc.178 This rule is changed to some extent by statute.179

VII. SETTLEMENT AND CONDONATION.

156. In General.-In the absence of statutory provision to the contrary, a criminal prosecution is not barred by the fact of settlement with, or condonation by, the person injured.

A person against whom a tort has been committed may condone the wrong or settle with the wrongdoer, and release him from his liability. But the settlement or condonation, as between the parties, cannot, in the absence of a statute, bar a prosecution by the state to punish for the wrong and injury to the public. Unless there is some express statutory provision, noth

Mikell's Cas. 74; Reg. v. Williams, 8 Car. & P. 286; Reg. v. Case, 4 Cox, C. C. 220.

177 Donohoe v. State, 59 Ark. 375, 27 S. W. 226.

178 See People v. Judges, 13 Johns. (N. Y.) 85; Foster v. Com., 8 Watts & S. (Pa.) 77; State v. Frost, 1 Brev. (S. C.) 385; State v. Stein, 1 Rich. (S. C.) 189; U. S. v. Buntin, 10 Fed. 730.

179 See State v. Blyth, 1 Bay (S. C.) 166.

ing that is done or agreed upon between the parties after the act can take away its criminal character, or prevent the state from prosecuting and punishing the wrongdoer. 180 Thus, condonation or forgiveness by the woman does not bar a prosecution for rape or seduction.181 An indictment for forgery will lie notwithstanding condonation or ratification by the person whose name is forged.182 And in the case of larceny, embezzlement, and the obtaining of money or property by false pretenses, it is no defense that the property or money has been returned or repaid, or tendered back.183

180 Com. v. Slattery, 147 Mass. 423, 18 N. E. 399, Beale's Cas. 151. 181 Com. v. Slattery, 147 Mass. 423, 18 N. E. 399, Beale's Cas. 151; State v. Newcomer, 59 Kan. 668, 54 Pac. 685 (rape); Barker v. Com., 90 Va. 820, 20 S. E. 776; In re Lewis, 67 Kan. 562, 73 Pac. 77, 63 L. R. A. 281, 100 Am. St. Rep. 479 (seduction).

Anciently it was otherwise, an appeal of rape being not unfrequently the prelude to a marriage. 2 Pol. & M. Hist. Eng. Law, 489; Robert's Case, Sel. Pl. Cr., Sel. Soc. Pl. 77, Mikell's Cas. 100.

A prosecution for adultery being maintainable only on complaint of the injured spouse must be dismissed where she withdraws the complaint. People v. Dalrymple, 55 Mich. 519, 22 N. W. 20, Mikell's Cas. 102.

A husband does not, by remarrying his wife after being divorced from her with knowledge of her adultery committed during the former marriage, condone the offense so as to bar a prosecution of her partner in the adultery. State v. Smith, 108 Iowa, 440, 79 N. W. 115, Mikell's Cas. 103, n.

A contract providing for the support of a bastard is valid and enforceable, though a part of its consideration is the release of the putative father from all civil and criminal proceedings. Rohrheimer v. Winters, 126 Pa. 253, 17 Atl. 606, Mikell's Cas. 103.

182 State v. Tull, 119 Mo. 421, 24 S. W. 1010; Countee v. State (Tex. Cr. App.) 33 S. W. 127.

183 Fleener v. State, 58 Ark. 98, 23 S. W. 1; Donohoe v. State, 59 Ark. 375, 27 S. W. 226; State v. Frisch, 45 La. Ann. 1283, 14 So. 132; Thalheim v. State, 38 Fla. 169, 20 So. 938; State v. Pratt, 98 Mo. 482, 11 S. W. 977; State v. Noland, 111 Mo. 473, 19 S. W. 715; Dean v. State, 147 Ind. 215, 46 N. E. 528; Shultz v. State, 5 Tex. App. 390; Com. v. Brown, 167 Mass. 144, 45 N. E. 1; Robson v. State, 83 Ga. 166, 9 S. E. 610; Williams v. State, 105 Ga. 606, 31 S. E. 546, Mikell's Cas. 100; People v. De Lay, 80 Cal. 52, 22 Pac. 90.

Indeed, as we shall see in another chapter, it is a misdemeanor compounding a felony-for a person against whom a felony has been committed to agree not to prosecute the offender.184

Condonation by the State.-A species of condonation by the state exists in which an offender is granted immunity in return for confession and assistance in convicting others.184a Promises by police officers cannot bind the state, since the immunity rests in the sound discretion of the court having final jurisdiction to sentence.184b

VIII. WRONG OF PERSON INJURED.

157. In General. Since the state punishes for crime because of the wrong and injury to the public, and not to redress the private wrong to the individual, it is no defense, as a general rule, that the person against whom a crime has been committed was himself guilty of a crime or a private wrong in the same transaction.

Since the state does not punish crime for the purpose of redress to the individual, but for the protection of the public, and as an example, it would seem to follow, as a matter of course,

The defrauded party's release of the defendant from liability is no defense on a prosecution for obtaining property by false pretenses. Com. v. Brown, 167 Mass. 144, 45 N. E. 1.

Ratification by the person injured is no defense on a prosecution under a statute for selling or removing property with intent to defraud any person having a lawful claim thereto. May v. State, 115 Ala. 14, 22 So. 611.

184 Post, § 438.

184a "If any felons will confess their crimes and accuse others and become approvers, let them be put out of penance, and let their confessions be presently received and enrolled by the coroner, and from that day forward let them have of the sheriffs three half pence a day for their support." Britt. 12, Mikell's Cas. 105.

184b Cannot be pleaded in bar. Com. v. St. John, 173 Mass. 566, 54 N. E. 254, Mikell's Cas. 105. An agreement by the prosecuting attorney to dismiss a case is not binding unless the judge consents. Tullis v. State, 41 Tex. Cr. R. 87, 52 S. W. 83.

that, if a criminal act is committed, the offender cannot escape punishment on the ground that the transaction also involved a crime or a private wrong on the part of the person injured. As was said in a Colorado case, where both the prosecutor and the defendant have violated the law, it is better that both be punished than that the crime of one be used to shield the other.185 This principle is clear, and there are a number of cases in which it has been recognized and applied. For example, it has been held that a prosecution for obtaining property by false pretenses cannot be defeated by showing that the other party committed a crime or wrong in parting with his property;186 or that he also intended to defraud, or that he also made false pretenses, and thereby obtained property from the accused.18

As was said by the Massachusetts court in such a case: "If the other party has also subjected himself to a prosecution for a like offense, he also may be punished. This would be much better than that both should escape punishment, because each deserved it equally."188

185 In re Cummins, 16 Colo. 451, 27 Pac. 887, 25 Am. St. Rep. 291.

186 Com. v. O'Brien, 172 Mass. 248, 52 N. E. 77. In Com. v. Henry, 22 Pa. 253, the indictment alleged that the defendant falsely and fraudulently represented to the prosecutor that he had a warrant for the arrest of his daughter for a misdemeanor, and threatened to arrest her, and by such means obtained money from the prosecutor. It was held that the indictment could be maintained, notwithstanding the unlawful motive of the prosecutor in paying the money.

So, in In re Cummins, 16 Colo. 451, 27 Pac. 887, 25 Am. St. Rep. 291, it was held that one who obtained property by false pretenses was none the less liable to punishment because the prosecutor parted with the money in furtherance of an illegal purpose, to obtain, by fraud, valuable lands from the United States. See, to the same effect, People v. Henssler, 48 Mich. 49, 11 N. W. 804; People v. Watson, 75 Mich. 582, 42 N. W. 1005; People v. Martin, 102 Cal. 558, 36 Pac. 952, Mikell's Cas. 98; Gillmore v. People, 87 Ill. App. 128.

187 Reg. v. Hudson, 8 Cox, C. C. 305, Bell, C. C. 263, Beale's Cas. 158; Com. v. Morrill, 8 Cush. (Mass.) 571, Beale's Cas. 160; People v. Watson, 75 Mich. 582, 42 N. W. 1005; People v. Shaw, 57 Mich. 403, 24 N. W. 121, 58 Am. Rep. 372.

or that

On the same principle, an indictment for larceny or embezzlement cannot be defeated by showing that the person from whom the property was taken or embezzled had himself stolen it, or otherwise obtained it wrongfully or unlawfully,189 he was in possession of the same, or using the same, in violation of the law,190 or that he parted with his money for the purpose of buying counterfeit money.190a An indictment for uttering counterfeit money may be sustained, though it may have been given to a prostitute.191 A prosecution for malicious trespass cannot be defended on the ground that the property destroyed was intoxicating liquors kept in violation of law.191a There are a few cases in which this principle has been ignored or repudiated, but they are clearly unsound, and are not supported by authority.192

188 Com. v. Morrill, 8 Cush. (Mass.) 571, Beale's Cas. 160.

189 Rex v. Beacall, 1 Car. & P. 454; Ward v. People, 3 Hill (N. Y.) 395; Com. v. Finn, 108 Mass. 466; Com. v. Smith, 129 Mass. 104.

180 Thus, a prosecution for larceny or embezzlement of intoxicating liquors, or the proceeds of sales thereof, may be maintained, notwithstanding the liquors were kept or sold in violation of a penal statute. Com. v. Smith, 129 Mass. 104. And see Com. v. Cooper, 130 Mass. 285. And an indictment will lie for stealing articles used for gambling purposes in violation of law. Bales v. State, 3 W. Va. 685. See post, § 310.

In Cunningham v. State, 61 N. J. Law, 67, 38 Atl. 847, it was held that, on a prosecution for procuring money by falsely pretending to have commenced a suit for the person furnishing the money, and to have expended the money in its prosecution, it is no defense that such person knew that the suit which she employed the defendant to prosecute was for a fictitious claim.

An indictment will lie for embezzlement from a foreign corporation, though it may not have complied with law relating to foreign corporations, and may have had no right to do business in the state. State v. Pohlmeyer, 59 Ohio St. 491, 52 N. E. 1027; People v. Hawkins, 106 Mich. 479, 64 N. W. 736; State v. O'Brien, 94 Tenn. 79, 28 S. W. 311; Com. v. Shober, 3 Pa. Super. Ct. 554.

190a Crum v. State, 148 Ind. 401, 47 N. E. 833.

191a State v. Stark, 63 Kan. 529, 66 Pac. 243, 88 Am. St. Rep. 251.

192 In New York, where an indictment charged an officer with ob