#### STATE v. L. C. DULA.

(Filed 19 April, 1933.)

Criminal Law G m—

The pleadings and judgment in a civil suit are not admissible in evidence in a criminal prosecution against the same' defendant *although*tlie same transaction is involved, and tlaeir admission constitutes reversible error. C. S., 533.

Appeal by defendant from *Stack, J.,*at October Term, 1932, of Forsyth.

New trial.

This is a criminal action in which the defendant was convicted of the embezzlement of certain moneys which he had collected from the sale of pianos received by him from the Lester Piano Company under a contract of consignment.

From judgment that he be confined, in the State’s prison for a term of not less than two or more than five years, the defendant appealed to the Supreme Court.

*Attorney-General Brummitt and Assistant Attorneys-General Seawell and Siler for the State.*

*John B. Slawter and Richmond Rucker for the defendant.*

*536CONNOR, J.

At tbe trial of this action, for tbe purpose of supporting its contention that tbe defendant bad received from tbe Lester Piano Company thirteen pianos, wbicb be bad sold without accounting to said company for tbe money wbicb be bad collected from tbe sales, as be bad undertaken to do by tbe contract of consignment, tbe State offered in evidence tbe complaint, answer, verdict, and judgment in a civil action lately pending in tbe Superior Court of Forsyth County, in which tbe Lester Piano Company was tbe plaintiff, and tbe defendant in this action was tbe defendant.

It was alleged in tbe complaint in that action that from about 28 October, 1929, to about 3 February, 1931, tbe Lester Piano Company, under a contract of consignment, bad delivered to tbe defendant thirteen pianos wbicb were specifically described in tbe complaint. This allegation was admitted in tbe answer; tbe defendant, however, alleged in bis answer that be bad settled in full for tbe said pianos with an agent of tbe plaintiff, Lester Piano Company, on or about 20 March, 1931. On tbe verdict in that action, it was adjudged that tbe plaintiff was tbe owner and entitled to tbe possession of tbe pianos described in tbe complaint. There was evidence at tbe trial of this action tending to show that tbe pianos described in tbe complaint in tbe civil action are tbe identical pianos involved in this action.

Tbe defendant in apt time objected to tbe introduction as evidence in this action of tbe pleadings and judgment in tbe civil action. These objections were overruled, and defendant excepted. On bis appeal to this Court, tbe defendant relies on bis assignments of error based on these exceptions.

It is provided by statute in this State that “no pleading can be used in a criminal prosecution against tbe party as proof of a fact admitted or alleged therein.” C. S., 533.

It is generally held that “a judgment in a civil action is. not admissible in a subsequent criminal prosecution although exactly tbe same questions are in dispute in both cases, for tbe reason- that tbe parties are not tbe same, and different rules as to tbe weight of tbe evidence prevail.” 15 R. C. L., 1004. It has been said that it would not be just to convict a defendant in a criminal action by reason of a judgment obtained against him in a civil action by a mere preponderance of evidence. *S. v. Bradneck,*69 Conn., 212, 37 Atl., 492, 43 L. R. A., 620.

Tbe error in overruling defendant’s objections to tbe admission in evidence of tbe complaint and answer and of tbe judgment in tbe civil action, was prejudicial to tbe defendant, and entitled him to a new trial. *S. v. Smith,*164 N. C., 475, 79 S. E., 979, is not an authority to tbe contrary. In that case, tbe defendant’s exception to tbe admission of a pleading in a civil action to which be was a party was abandoned on bis *537appeal to this Court, and for that reason was not considered in the decision of the questions involved in the appeal.

As the defendant is entitled to a new trial for the error in the admission as evidence of the pleadings and judgment in the civil action, we do not discuss other assignments of error relied on by defendant in this appeal.

New trial.