65 So. 724 | Ala. Ct. App. | 1914
Lead Opinion
The action may be treated here as one for malicious prosecution, as the count charging false imprisonment was eliminated by the general affirmative charge as to that count given at the request of the defendant, the appellant here. It was undisputed that the defendant caused the plaintiff to be prosecuted criminally for an alleged trespass after warning, and that, before the commencement of this suit, that prosecution had resulted in the acquittal of the plaintiff. The theory on which that prosecution was instituted was that the plaintiff, who as a subcontractor under one Hicks, had been engaged in painting a house which Hicks had contracted to build for the defendant, after Hicks had abandoned his contract and defendant had taken charge of the house to have it completed by others employed by himself, and when he (the plaintiff) no longer had any right or good excuse to be or remain on the defendant's premises, entered or remained thereon after having been warned or ordered not to do so.— Code, § 7827. The plaintiff testified to the effect that at the time he was arrested on the criminal charge made
We are not of opinion that the question asked the witness Martin, “What was said to him, if anything?” so plainly indicated that any evidence it might elicit was inadmissible for any purpose that the court was chargeable with error for overruling the objection to it, which was a general one, specifying no ground upon which it was made. — Williams v. Anniston Electric & Gas Co., 164 Ala. 84, 51 South. 385. A statement by the witness as to something said by the defendant to the plaintiff, throwing light on the former’s motive or purpose in instituting the prosecution, would not have been unresponsive to the question. At any rate, the court was entitled to be informed of the ground upon which the question was supposed to be objectionable.
As-to objections made to questions after they had been answered; it is enough to say that they came too late for the court to be chargeable with error for overruling them. — Birmingham Ry., Light & Power Co. v. Taylor, 152 Ala. 105, 44 South. 580.
It was not error for the court to sustain the plaintiff’s objection to the question of the defendant to his witness Smith, “State whether or not the proceedings were taken out under the advice of Mr. Brown, the attorney.”
We are unable to discover how there could have been any relevancy in any answer that could have been expected to the question asked the defendant, “Did you or not notify Hornbuckle to quit the job?” especially in view of the fact that the witness disclaimed any knowledge of the plaintiff’s having any connection with the person named in the question. Plainly the defendant was not entitled to prove a transaction he had with one who was stranger to the plaintiff.
We are not of opinion that material evidence was called for by the question asked the defendant, “Tell the jury whether or not you could get undisturbed possession of your premises at the time this arrest was made.” If the plaintiff had a right of action against the defendant for a malicious prosecution, it could not have' been affected or impaired by the fact that, possibly because of some occurrence for which the plaintiff was not responsible, the defendant was unable to get undisturbed possession of his premises; nor could that fact justify or palliate the conduct of the defendant in instituting a criminal prosecution against the plaintiff without having probable cause to believe that he was guilty of the offense with which he was charged. The fact sought
Following a statement of the defendant’s witness O. B. Brown that he attended the trial-of the case in the criminal court and assisted in the prosecution, he was asked the following questions, objections to which were sustained:
“What was their defense to the prosecution?” “What evidence did they introduce on that subject to show there was no trespass after warning?” “State whether or not they sought to show by evidence that LeAvis Avas not guilty because he was on the FoAvlkes lot when he got- the notice not to enter on it.” “The evidence introduced by LeAvis Avas, in substance and effect, that he was on the premises when he got the notice not- to enter?”
The leading nature of the last of these questions was enough to justify the court in sustaining the objection to it. Each of the other questions sought to elicit proof as to what “they” did, without specifying Avhose conduct was the subject of the inquiries, or confining the inquiries to matters in which the plaintiff participated or for Avhich he Avas responsible. If it Avas desired to prove Avhat the plaintiff did or what was done by his authority, the questions should have been so framed as not to be capable of eliciting evidence as to conduct of strangers to him for Avhich he may not have been'at all responsible. One Martin was arrested at the same time the plaintiff was. The questions as asked might have elicited statements as to what he or his counsel did or as to mere suggestions of counsel evidence of which was not admissible against the plaintiff. — Tennessee Coal, Iron & Railroad Co. v. Linn, 123 Ala. 112, 26 South. 245, 82, Am. St. Rep. 108. If it was permissible for the defendant to prove what the plaintiff did in resisting the criminal charge upon which he was tried — and as to
The assignments of error which are based upon the single exception which was reserved to several parts of the oral charge of the court to the jury are sought to be supported by what was said in the opinion rendered in the case of Jordan v. Alabama Great Southern R. Co., 81 Ala. 220, 228, 8 South. 191, in criticism of a charge which was construed as importing that a defendant would be civilly liable for a malicious prosecution if, in instituting it,, he was actuated by any motive other than the simple purpose of bringing the person prosecuted to justice, notwithstanding the facts that he had probable cause to believe that the plaintiff was guilty of the offense with which he was charged, and that the plaintiff was, in fact, guilty of the offense. No such meaning can be attributed to the parts of the oral charge to which the exception was reserved, especially if they are read, as they should be, in connection with what was stated by the court in' other parts of that charge. The giving of the parts of the charge which were excepted to was preceded by instructions plainly to the effect that it Avas incumbent upon the plaintiff, to entitle him to recover, to establish these four elements of the tort Avhich he alleged, namely: (1) That the alleged prosecution was instituted by the defendant; (2) that it was terminated before this suit was brought; (3) that it was instituted Avithout probable cause to believe that the plaintiff was guilty; and (4) that it was instituted maliciously. It is manifest that in the
“The defendant’s counsel stated at the time of the reservation of the exception that no exception was taken to the mere verbiage or phraseology of the said several parts of said oral charge excepted to, but to the principle announced therein to the effect that malice could be inferred from evidence tending to show that defendant, in the institution of legal proceedings, acted from any other motive or purpose than a bona fide effort to enforce the law.”
What the court said, in its definitions of malice to which an exception was reserved was in conformity with numerous rulings to the effect that: ■
“Any other motive than a bona fide purpose to bring the accused to punishment as a violator of the criminal law, or associated with such bona fide purpose, is malicious.” — Lunsford v. Dietrich, 93 Ala. 565, 9 South. 308, 30 Am. St. Rep. 79; Jordan v. Alabama Great Southern R. Co., 81 Ala. 220, 8 South. 191; Rutherford v. Dyer, 146 Ala. 665, 40 South. 974.
Written charges 6 and 7 given at the request of the plaintiff also were in conformity with those rulings, and the court did not err in giving either of those charges.
The charge in question is not subject to the criticism of it which is made in the argument of the counsel for the appellant, that it was in conflict with the charge given at the request of the defendant to the effect that, if the jury believed the evidence they could not find for the plaintiff under the first count of the complaint, which charged that the- defendant wrongfully caused the plaintiff to be arrested and imprisoned. The facts hypothesized in that charge, coupled with those as to which there was no controversy, were all that the plaintiff had to prove to sustain the averments of the second count. The charge was applicable to the count which remained before the jury, and the court did not err in giving it. — Lunsford v. Dietrich, supra.
For the advice of counsel to be a defense to the prosecutor, it must have been given on a full and fair statement of all the facts known to him, or which, by proper diligence, he could have ascertained. — Abingdon Mills v. Grogan, 167 Ala. 146, 52 South. 596.
Written charge 2, given at the request of the plaintiff, is criticized because of its omission of some such
The refusal of the court to give written charge 14 requested by the defendant was justifiable, because it was so expressed as to be capable of conveying the meaning that, if the plaintiff was warned not to leaveFowlkes’ premises, he had no legal cause or good excuse to be or remain there. The charge was lacking in-clearness.
Each of the written charges E, F, and Gf requested' by the defendant ay as faulty in its statement of a predicate for a verdict in favor of the defendant, in that it-omitted the submission to the jury of the question of the defendant being in possession of the premises upon Avhich the plaintiff was charged with having trespassed after Avarning. The evidence Avithout dispute sho-Aved that prior to the arrest of the plaintiff he had rightfully been on those premises as a subcontractor under
It being undisputed tbat tbe defendant instituted the alleged prosecution, and tbat it bad been terminated by tbe acquittal of the plaintiff before this suit was brought, tbe defendant could not have been entitled to tbe general affirmative charge in his favor unless tbe uncontroverted evidence showed that- when be instituted the prosecution be bad an honest belief; supported by reasonable grounds, of tbe plaintiff’s guilt of tbe offense with which be was charged. — Sleed v. Knowles, 79 Ala. 446; Long v. Rodgers, 19 Ala. 321; 26 Cyc. 29.
Whatever belief be bad of tbe plaintiff’s guilt of having committed a trespass after warning was founded, not on bis own knowledge of what tbe plaintiff bad done or omitted, to do, but upon information imparted to him by bis agent Smith. Whether one really believed a thing of which be did not have personal knowledge, and whether such belief was supported by reasonable grounds, depends upon tbe credibility of tbe information upon which tbe belief is claimed to have been based.
Written charge 2 requested by the defendant is not an accurate statement of an applicable proposition. The belief of the prosecutor is a state of mind, but the cause of that belief must be a state of facts or circumstances, not a mere mental creation of the prosecutor, but known or reported to him as actually existing. The inaccuracy of the statement justified the refusal of the charge.
Written charges 6 and 13 refused to the defendant were calculated to convey the impression that the acquittal of the plaintiff was not á circumstance which it was permissible for the jury to consider in passing on
“It is not to be inferred from what we have said that the act of abandoning a prosecution is not evidence to be weighed by the jury. That, and all other circumstances, should be considered in determining whether, at the institution of the prosecution, there was probable cause for believing the accused guilty of the offense charged.”
If on the inquiry mentioned an abandonment of the prosecution may be considered as one of a combination of circumstances, it is because, when so considered, and not looked to as an isolated fact, disassociated from other circumstances disclosed by the evidence, it may be regarded as having some tendency to prove a want of probable cause. We think it is to be inferred from the expression just quoted that the acquittal of the plaintiff is such a fact as may be looked to as one of a number of circumstances which, when considered together, may be regarded as having some tendency to prove a lack of probable cause to believe that the plaintiff was guilty of the offense with which he was charged. It follows that charges which were so expressed as to be liable to convey the impression that the acquittal of the plaintiff, whether considered by itself or in connection with
Charge 8 requested by the defendant was properly refused. The jury might have concluded from it that they avouM be justified in finding against the plaintiff if there had been anything in his conduct Avhich could have afforded to any one a reasonable basis for a belief in his guilt, though they found from the evidence that, at the time the prosecution Avas instituted, the defendant did not believe that he Avas guilty of the offense for Avhich he Avas prosecuted.
Befused charge 11 was abstract. There was no evidence of Common report in reference to the plaintiff's guilt. It is not intended to be intimated that this charge Avas not faulty in other respects.
As to the assignment of error based upon the exception reserved to the overruling of the defendant’s motion for a new trial, it is enough to say that, under the familiar rules applicable to the revieAV on appeal of the action of a trial court in that regard, it is not made to appear that reversible error Avas committed by that ruling.
Affirmed.
Rehearing
ON APPLICATION FOR REHEARING.
In response to the appellant’s application for a rehearing Ave Imve reconsidered the action of the court in refusing to give written charges 6 and 13 requested by him. The conclusion heretofore announced as to those rulings was, as the opinion formerly rendered shoAvs, influenced by an expression contained in the
The conclusion is that written charge 13, in stating that “acquittal does not tend to establish want of probable cause,” asserted a correct proposition applicable to the evidence in the case; and that the refusal to give it was reversible error.- — Bekkeland v. Lyons, 96 Tex. 255, 72 S. W. 56, 64 L. R. A. 474; Laing v. Mitten, 185 Mass. 233, 70 N. E. 128; Cooley on Torts (3d Ed.) p. 336.
The use in refused charge 6 of the words “probable cause,” instead of “Avant of probable cause,” kept it from having the meaning probably intended, and rendered it confusing, Avith the result that the court Avas justified in refusing to give it.
In the argument filed in support of the application for a rehearing i't is insisted that the court was in error in holding that the general affirmative charge requested by the defendant Avas properly refused. In this connection much stress is laid upon Avhat Avas said in the opinion rendered in the case of Louisville & Nashville R. R. Co. v. Stephenson, 6 Ala. App. 578, 60 South. 490. Expressions used in that opinion are to be considered in the light of the fact that the testimony offered by the plaintiff in that case showed that the defendant had probable cause for the institution of the prosecu
A. record does not show that a party was entitled to the general affirmative charge requested in his behalf when it fails to show that the evidence in the case afforded no basis for an inference adverse to his claim.
Application for rehearing granted, former judgment of affirmance set aside, and reversed and remanded.