*116 This case was submitted under rule 46, and the opinion of the court was r delivered by
It may be conceded that upon the trial of one for embezzlement other acts of the accused of a similar nature or character can be shown on the inquiry whether the act in question was done knowingly and intentionally. Lang v. State,
It may be true that an offer of compromise by one accused of crime, аs distinguished from an effort to compromise a civil suit, may be used in evidence as an incriminating circumstance, but the inquiry here wa,s not the guilt or innocence of the plaintiff, but whether or not the dеfendant’s agent, in aiding or bringing about the prosecution, had reasonable grounds to believe that there existed a probable cause of guilt, and the offer of compromise subsequеntly made to the solicitor could shed no light upon the facts confronting the appellant’s agent when the prosecution was begun. Moreover, such an effort by the plaintiff’s attorneys to compromise was not binding upon the plaintiff unless he authorized or ratified same.
The plaintiff had the right, under the statute, to propound interrogatories to the defendant and to require thе production of letters or documents which had any material bearing upon the questions involved.' The letters attached were those exchanged between the agents of the oil сompany, the appellant, and the solicitor. The two former had a community of interest and a common purpose in view, as the plaintiff was the agent of the oil company, аnd the appellant was his surety, and these two companies were engaged in ascertaining his shortage and were interested in procuring a restitution from him. The .letters were, in a sense, a part of the res gesta? of the prosecution, and had a bearing upon this appellant’s connection therewith — whether or not its agent procured or aided and abetted in thе prosecution and whether or not he made a full and fair statement of all the facts to the solicitor. We cannot agree .with the contention of counsel that these letters were protected from being used as evidence because of being privileged communications. They were no doubt of such a character, and the relationship between thе parties was such that they could not be used or looked to as a basis for libel, and were no doubt to that extent privileged communications. But this did not render them privileged against use for еvidential purposes in the trial of other issues to which they related. Counsel have cited many cases on this subject, but most, if not all, of them treat such communications as privileged from being usеd as the foundation of a suit for libel, and if any of them extend the privilege against their use as evidence when the parties are sued for some other tort or transaction not based оn writing the letters, but as to which they are material evidence in elucidating the conduct and intent of the parties, and have a bearing upon their connection with the subject-matter of thе suit, we would not follow them.
The appellant insists upon error in the refusal of the general charge upon two theories: First, because the prosecution was started by the solicitor, and not through the action or instrumentality of its agent; second, that, should it be found that its agent participated or aided in bringing about the prosecution, it was only after the facts had been fully and fаirly presented to the solicitor and after he had advised the same.
True, the solicitor testified to the effect *117 that he as a public officer reached the conclusion that Pryor should be prosecuted, and that he indeрendently exercised his own judgment in the matter, but he also stated, “and from them I reached the conclusion,” .meaning, of course, that he rested his conclusion upon the information furnished by the agents of the appellant and the oil company, and if they jointly or the -appellant’s agent only misrepresented the facts in order to induce action, it cannot be said that they did not aid and abet in bringing about the prosecution, and this was á question for the determination of the jury.
It is a well-settled rule in cases of this character, when malice or its equivalent may be involvеd, that, if the defendant acted
solely
upon the advice of a reputable attorney, after fairly submitting to him all of the facts, this will make out a' complete case against malice or bad faith. Phillips v. Morrow (Ala. Sup.)
That part of the oral charge excepted to and made the basis of the first assignment of error is bad. The first portion of same authorizеs a recovery if the prosecution was either malicious or without probable cause when, under the law, the establishment of both elements conjunctively is essential to a recovery. O’Neal v. McKinna,
It may be that so much of the oral charge as excepted to and embodied in the second assignment of error, to wit, “The gist of the suit, the action, is that plaintiff has been improperly made the subjеct of criminal or legal process,” is inaccurate, and we prefer the definition as stated by our own court, which is that “malice and the want of probable cause constitute thе gist of the action.” Randall v. Henry, 5 Stew. & P. (Ala.) 378. The foregoing statement by the trial court was not, however, reversible error, for, when taken with the entire sentence from which it is taken, the definition was substantially correct. The sentence is as follows:
. “The gist of the suit, the action, is that the plaintiff has been improperly made the subject of criminal or legal process to his damage, it states, is maliciously setting the law in motion without probable cause and belief that it can succeed, and which finally ends in failure.”
This sentence is perhaps involved and elliptical, b.ut, as above stated, it is in substance free from reversible error.
For the error heretofore indicated, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
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