81 So. 195 | Ala. Ct. App. | 1918
Lead Opinion
The averments of the plea, when construed in connection with the averments of the complaint, were affected with such uncertainty as to render it subject to the demurrers, which were properly sustained. If the judgment of the inferior court was admissible at all, it was only prima facie evidence of the existence of probable cause, and the plaintiff was not precluded by this judgment from showing a want of probable cause, by other competent evidence. Ewing v. Sanford, 19 Ala. 605; Hanchey v. Brunson, 175 Ala. 236, 56 South. 971, Ann. Cas. 1914C, 804.
The evidence on the issue presented by the defendant’s other special plea was in conflict, and the defendant was not entitled to the affirmative charge.
There is no reversible error in the record.
Affirmed.
Lead Opinion
On appeal from the inferior criminal court of Mobile to the circuit court, the trial is de novo on the merits, without regard to the judgment of the inferior court. Alford v. State ex rel. Attorney General,
The averments of the plea, when construed in connection with the averments of the complaint, were affected with such uncertainty as to render it subject to the demurrers, which were properly sustained. If the judgment of the inferior court was admissible at all, it was only prima facie evidence of the existence of probable cause, and the plaintiff was not precluded by this judgment from showing a want of probable cause, by other competent evidence. Ewing v. Sanford,
The evidence on the issue presented by the defendant's other special plea was in conflict, and the defendant was not entitled to the affirmative charge.
There is no reversible error in the record.
Affirmed.
While we are aware that there is great conflict of opinion on the subject as to whether such a judgment is good as an estoppel, and that probably the numerical weight of authority sustains the view that it is, we think the best considered cases and sound reason sustain the rule that such a judgment is only prima facie evidence of the existence of probable cause, and that it may be rebutted by any competent evidence tending to show the absence of probable cause. Sandlin v. Anders,
The appellant's contention that there is no conflict in the evidence as to the issue presented by the third plea, and that therefore it was error to refuse the affirmative charge requested by him, cannot be sustained. There was a conflict in the evidence as to whether the defendant disclosed to the attorney that York occupied under a written contract the premises on which the poison was alleged to have been put out. The witness Courtney testified on cross-examination:
"That the defendant had not shown him the contract under which A.E. York occupied the premises, and that the first he knew of their being a written contract was when it was offered in evidence in the inferior court by plaintiff's attorney then defending her."
The contract in question was entered into on the 20th of July, 1915, and by its terms was not to be performed within one year from its date, and the fact that it was in writing was essential to its validity. Code 1907, § 4289. It was incumbent on the defendant in support of this plea to show that he made a full and fair statement of all the facts within his knowledge (Stewart v. Blair,
Application overruled. *677
Rehearing
On Rehearing.
While we are aware that there is great conflict of opinion on the subject as to whether such a judgment is good as an estoppel, and that probably the numerical weight of authority sustains the view that it is, we think the best considered cases and sound reason sustain the rule that such a judgment is only prima facie evidence of the existence of probable cause, and that it may be rebutted by any competent evidence tending to show the absence of probable cause. Sandlin v. Anders, 187 Ala. 473, 65 South. 376; Skeffington v. Eylward, 97 Minn. 244, 105 N. W. 638, 114 Am. St. Rep. 711; MacDonald v. Sehroeder, 214 Pa. 411, 63 Atl. 1024, 6 L. R. A. (N. S.) 701 and note, 6 Ann. Cas. 506; Miller v. Runkle, 137 Iowa, 155, 114 N. W. 611; Staton v. Mason, 119 App. Div. 437, 104 N. Y. Supp. 155; Platt v. Bonsall, 136 App. Div. 397, 120 N. Y. Supp. 983.
The appellant’s contention that there Is no conflict in the evidence as to the issue presented by tire third plea, and that therefore it was error to refuse the affirmative charge’ requested by him, cannot be sustained. There was a conflict in the evidence as to whether the defendant disclosed to the attorney that Tork occupied under a written contract the premises on which the poison was alleged to have been put out. The witness Courtney testified on cross-examination:
“That the defendant had not shown him the contract under which A. E. Tork occupied the premises, and that the first he knew of their being a written contract was when it was offered in evidence in the inferior court by plaintiff’s attorney then defending her.”
Application overruled.