JAMES J. MORRISSEY vs. GEORGE POWELL.

COX, J. The jury returned a verdict for the defendant in this action of tort for personal injuries, alleged to have been sustained by the plaintiff as the result of the negligent operation of a motor vehicle by the defendant on August 9, 1937. The defendant admitted that he had had some beer about four hours prior to the happening of the accident in question. It was agreed that, on August 9, 1937, the defendant pleaded guilty in the District Court to a charge of operating a motor vehicle while under the influence of intoxicating liquor at the time the accident in question occurred; that the case was continued to August 30, 1937, when the defendant was permitted to withdraw his plea of "guilty" and to plead "not guilty," and, after a trial, the complaint was dismissed. The plaintiff offered to prove these facts by the records of the District Court or by a duly certified copy, and also by proper questions put to the defendant as a witness.

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The defendant waived the necessity of producing the original records of the District Court and also the necessity of asking the defendant the specific questions "necessary to bring out the above facts." He objected to the competency of "such" evidence, stating that he raised no question as to the method of proof of the facts and admitted such to be the facts. The trial judge excluded the evidence, and the plaintiff's exception to its exclusion presents the only issue in the case.

A plea of "guilty" is an admission of the material facts alleged in the complaint or indictment, Commonwealth v. Ayers, 115 Mass. 137; compare Commonwealth v. Lannan, 13 Allen 563, 569, and in so far as it amounts to an admission of facts material in the trial of a civil case in which the person so pleading is a party, it is admissible as evidence against him. Dzura v. Phillips, 275 Mass. 283, 289, 290. See Blackman v. Coffin, 300 Mass. 432, 437. But such a plea, even when followed by a conviction, is not necessarily conclusive as to the facts admitted, and the record of a conviction based upon a plea of guilty is received "not as a judicial act, having the force and effect of a judgment, but as a solemn confession of the very matter charged in the civil action." Mead v. Boston, 3 Cush. 404, 407. The plea may be explained and reasons shown for entering it. Buxton v. Somerset Potters' Works, 121 Mass. 446. Minasian v. Aetna Life Ins. Co. 295 Mass. 1, 3, and cases cited. See Leary v. Keith, 256 Mass. 157, 158. The "best evidence" rule as to the production of written evidence does not apply to the admissions of parties inasmuch as what a party admits against himself may reasonably be taken as true. Smith v. Palmer, 6 Cush. 513, 521. Loomis v. Wadhams, 8 Gray 557, 559, 562. On the other hand, when a defendant has been convicted of a crime not based upon his plea of "guilty," the conviction is not conclusive when that issue arises in a civil proceeding to which the Commonwealth is not a party, Silva v. Silva, 297 Mass. 217; Blackman v. Coffin, 300 Mass. 432, 437, and in the trial of a civil case a party is not entitled to show that he has been acquitted in a criminal prosecution involving the subject matter of the civil action (Fowle v. Child, 164 Mass. 210, 214) as an adjudication

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or as evidence that the party charged was guiltless. Minasian v. Aetna Life Ins. Co. 295 Mass. 1, 3.

We are aware of no case in this Commonwealth where the precise question to be decided has been considered. There is a conflict of authority on the question whether after the withdrawal of a plea of guilty and the entry of a plea of not guilty, the former plea may be shown. In the case of Kercheval v. United States, 274 U.S. 220, 224, it was held that a plea of guilty withdrawn by leave of court is not admissible on the trial of the issue arising on the substituted plea of not guilty. It was there said that the effect of the court's order permitting the withdrawal was to adjudge that the plea of guilty "be held for naught," and that its subsequent use as evidence against the defendant was in direct conflict with that determination. Cases are cited in the opinion in support of this proposition as well as cases where a different view is taken, and where it is held that the plea is a statement of guilt having the same effect as if made out of court; that it is received on the principle which permits a confession of the accused in a lower court to be shown against him at his trial in the higher court; that it is not received as conclusive, and like an extrajudicial confession, is not sufficient without other evidence. See State v. Carta, 90 Conn. 79; People v. Steinmetz, 240 N.Y. 411, 416. In this Commonwealth a plea of guilty in a lower court where the defendant is held for the grand jury is admissible against the accused at the trial upon the subsequent indictment. Commonwealth v. Haywood, 247 Mass. 16, 19-20. Where a defendant pleads guilty in the lower court, and upon his conviction appeals to the Superior Court, it has been held that while the appeal vacates the judgment, it does not change the issue, which has been joined, or entitle the defendant to a jury trial, and on the record nothing remains to be done except to impose sentence. Commonwealth v. Crapo, 212 Mass. 209. Whether a plea entered and accepted by the court may be withdrawn and a different plea entered rests in the sound judicial discretion of the judge, and there is no doubt that if a plea is entered by mistake or by inadvertence, or by an attorney without

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authority, the judge in his discretion may permit it to be withdrawn and allow the defendant to plead anew. Commonwealth v. Marino, 254 Mass. 533, 535, and cases cited.

We are of the opinion that the same principle that admits the admission of a defendant by his plea of guilty in the lower court to be introduced against him upon trial in the higher court, should admit, with the same consequences and subject to the same rights of explanation, his admission by a plea of guilty, afterwards withdrawn, in the trial of a civil action where his admission is competent upon an issue there tried. It seems to us that the real question involved, when a defendant who has pleaded guilty asks the judge's permission to change his plea, is whether he shall be sentenced on his plea of guilty or be permitted to go to trial upon the complaint. The change of plea, if permitted, is a means to an end. The withdrawal of the plea stays the hand of the judge as to the right and duty to impose sentence, but it does not withdraw the fact that the plea was entered. Under such circumstances, the plea of guilty is not conclusive and is nothing more than a piece of evidence inconsistent with the defendant's later claim that he is not guilty. Conflicting statements by a party are common incidents of trials. The withdrawal of the plea of guilty and the entry of a plea of not guilty were, in effect, only the denial of the facts that at one time had been admitted. If, as was said by Shaw, C.J., in Mead v. Boston, 3 Cush. 404, at page 407, "The admission . . . [plea of guilty] is received, not as a judicial act, having the force and effect of a judgment, but as a solemn confession of the very matter charged in the civil action," we are unable to follow the cases holding that the "judicial act" that permits the withdrawal of a plea of "guilty" and the substitution of a plea of "not guilty" sets at naught the original plea. The judge, by his act, does not go into the question of whether the defendant is guilty or not, but merely determines whether he should be given an opportunity for a trial. The plea of "not guilty," which follows the judge's permission to change the plea, is the act of the defendant as was his plea of "guilty." The act of the

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judge in permitting the withdrawal of the plea cannot change the fact that the defendant pleaded "guilty" and ought not to be construed as amounting to a complete destruction of the force and effect, as a matter of evidence, of that plea.

We are not here concerned with the rule under which the credibility of the witness is sought to be affected by showing conviction of crime. G.L. (Ter. Ed.) c. 233, Section 21. In such a case the record is conclusive evidence of the conviction and must be left unexplained. Commonwealth v. Gallagher, 126 Mass. 54. Commonwealth v. Galligan, 156 Mass. 270. Lamoureux v. New York, New Haven & Hartford Railroad, 169 Mass. 338, 340. Neither are we concerned with the rule where, the parties being the same, the former judgment is held to have established all facts that were involved in the issue then tried and essential to the judgment rendered upon it. In such a case the record of conviction is conclusive and not open to explanation. Commonwealth v. Evans, 101 Mass. 25. Commonwealth v. Feldman, 131 Mass. 588. Commonwealth v. Ellis, 160 Mass. 165. See Commonwealth v. Fortier, 258 Mass. 98.

If the defendant was operating the automobile in question while under the influence of intoxicating liquor at the time the accident occurred, this was competent evidence, and in our opinion the excluded evidence should have been received.

Exceptions sustained.