80 So. 809 | Ala. | 1919
This was an action on the case for malicious prosecution brought to the circuit court of Mobile, the complaint alleging, inter alia, that the charge upon which plaintiff had been prosecuted had been judicially investigated, and said prosecution ended, and plaintiff discharged. Defendant pleaded specially as follows:
"(2) For further plea in this behalf the defendant says that the said cause in which the plaintiff was arrested was tried in the inferior criminal court, from which said warrant issued, and that the plaintiff was convicted of the offense for which she was arrested in the said inferior criminal court."
Demurrer to this plea was sustained in the circuit court, and that ruling is made the main ground of the application to this court.
A reading of the numerous cases on the subject of the question proposed by this application leads to the conclusion, not only that the courts are disagreed as to the probative force of a conviction that has been vacated or annulled on appeal, but there is considerable contrariety of opinion as to the grounds upon which their different holdings should be placed. Free to deal with the question as an original one, though the decision in Sandlin v. Anders,
"The true and logical reason why a conviction reversed on appeal and the defendant discharged is relevant evidence on the issue of probable cause is, not that the judgment imports absolute verity; for after the reversal and discharge there is in fact and law no judgment. The true reason, as stated in the case of Nehr v. Dobbs,
It follows from these premises that the presumption to be indulged from proof of conviction in such cases is a rebuttable one, and the evidence to rebut cannot be limited to a direct impeachment of the judgment of conviction for fraud or perjury, but that any evidence is admissible which competently tends to show that the prosecution did not in fact have probable cause. Skeffington v. Eylward, supra.
A few of the cases hold that a judgment of conviction, though reversed on appeal, is conclusive evidence of probable cause. Griffis v. Sellars,
It may be noted further that in the cases in which we have found this question discussed it was raised as a question of substantive law, a question as to the effect of evidence. In the case before us petitioner sought to make of it a question of pleading. The plea was unnecessary, since the evidence to sustain it would have been admissible under the general issue which was pleaded. 13 Ency. Pl. Pr. 458. But as pleaded it was bad, because it showed only a prima facie case for the defendant. To sustain the plea would require us to hold with that very small minority of the courts which entertain the view that a conviction in such case is conclusive of probable cause. Neither the reason of the matter nor our own previous adjudications permit us to accept that view.
Certiorari denied.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur. *427