Appeal from the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
Before BIGGS, MARIS, and CLARK Circuit Judges.
The learned district court rendered its judgment with obvious reluctance. That reluctance appears both in its opinion and in the colloquies. It felt itself bound, however, by the decision of the United States Supreme Court in the case of Coffey v. United States, 116 U.S. 436, 6 S. Ct. 437, 29 L. Ed. 684. That case has received a distinctly "unfavorable press".*fn1 It has also suffered by implication, at least, in later decisions of the same tribunal.*fn2 These cases certainly limit its holding to the particular facts. One has indeed the impression that only the shibboleth of "stare decisis" has saved it from express repudiation.
We think that the particular facts of the principal case given us the necessary loophole and in so thinking we must disagree with the learned district judge. The action is a libel for forfeiture.The chattel to be punished is a Dodge automobile. Its crime, or so its is charged, is that of acting as convoy for another car engaged in the illicit transportation of alcohol. The Dodge was driven by one Palermo. That gentleman was indicted and tried for his role as "convoy officer". A jury expressed their belief in his innocense. Encouraged perpahs thereby a defense of the car is made. That defense is partly factual and partly legal. It consists of a reliance first on the absence of untaxed spirits in the car and second on the acquittal of the driver Palermo. The defense is entered, as it must be, by the person claiming ownership of the accused chattel.This person is the wife of the acquitted driver.The government denies the wife's ownership and ascribes it to her husband. The jury has voted in favor of forfeiture.
The traditional "day in court" affords a hearing. The limitation of that day to one day, so to speak, affords protection from harassment. So the courts recognize the need for preventing successive litigations of the same issue between the same parties. They have embodied that need in two doctrines, former jeopardy,*fn3 and res judicata. They are mutually inclusive in some instanices and mutually exclusive in others. As the maxin indicates, the plea of double jeopardy requires an offence identical in law and fact. We need not concern ourselves here with various complications that have surrounded this question of identity.*fn4 It is clear that where there is no such identity a defendant may still suffer harassment from the attempted retrial of an issue vital to the state's case already decided adversely to it. It is here that the plea of res judicata supplement that of former jeopardy.*fn5 Of course, double jeopardy covers conviction as well as acquittal.
The application of these general ideas to the case of a criminal prosecution followed by a civil suit has not been easy. Its difficulty has been enhanced by considerable confusion in the authorities. There has been a tendency to vacillate between jeopardy and judicata, between the character of the charge and the character of the proof. Some cases emphasize the remedial nature of the second action.Murphy v. United States, 272 U.S. 630, 47 S. Ct. 218, 71 L. Ed. 446; Helvering v. Mitchell, 303 U.S. 391, 58 S. Ct. 630, 82 L. Ed. 917. Others stress the difference in the degree of proof required, Stone v. United States, 167 U.S. 178, 17 S. Ct. 778, 42 L. Ed. 127; United States v. Schneider, C.C., 35 F. 107; United States v. Donaldson-Shultz Co., 4 Cir., 148 F. 581.*fn6 It is not our place to resolve these doubts and difficulties.
As we have said, the Coffey case has not been expressly overruled. It is nevertheless left in a tenuous position. A prior conviction has been held not to bar forfeiture, Various Articles of Personal Property v. United States, 282 U.S. 577, 51 S. Ct. 282, 75 L. Ed. 558. So also the res judicata theory of it and earlier cases seems to have been disapproved, Stone v. United States, 167 U.S. 178, 17 S. Ct. 778, 42 L. Ed. 127; Murphy v. United States, 272 U.S. 630, 47 S. Ct. 218, 71 L. Ed. 446; Helvering v. Mitchell, 303 U.S. 391, 58 S. Ct. 630, 82 L. Ed. 917. Whether or not that disapproval has gone far enough to be followed by the "inferior" courts is not necessary to presently decide. Res judicata imports, by definition almost, the same parties. It is not enough that in some court somewhere the same facts have been decided. Those same facts must be viewed from the point of view of the parties giving them legal scrutiny. Here the parties are not the same.*fn7 It has been suggested that as one party to these forfeitures is the chattel, they can never be the same as in the criminal action. To so animate them may be far-fetched. We do not have to go to any such length. The claimant here is not even the person charged with crime. She is his quite innocent wife. She must then be held to her proof of the innocence of the chattels she now wishes to rescue from the clutches of an allegdly offended government. We are constrained, then, to disagree with the learned District Judge and subscribe to the doctrine of United States v. One 1935 Model Pontiac Sedan Automobile, 6 Cir., 105 F.2d 149, a case decided after the former's opinion was handed down.
The judgment of the District Court ...