Martin's v. Martin, 25 Ala. 201

25 Ala. 201 | Ala. | 1854

CHILTON, C. J. —

Whether, if the question were an open one, or for the first time before this court, we should be disposed to hold that an action to recover stolen property might not be maintained against the thief before instituting a criminal prosecution for the felony against him, is not now a matter of inquiry with us ; but shall we depart from an unbroken current of decisions, extending back to the first organization of the court, is the question presented by the able argument of the counsel for the appellant.

If, as he insists, these decisions are opposed to the constitution of the State, or of the United States, then it would be our duty, as well as our pleasure, to overrule them. But we do not so regard them.

It is insisted, that to deny the owner of the goods a civil remedy until he prosecutes the thief, and to deprive him of all remedy against the felon should he never institute such prosecution, is to deprive him of his property without due course of law, in violation of the tenth section of the first article of the constitution. But, if such was the course of the law when the constitution was formed, as it undoubtedly has always been by the common law, it certainly amounts to no violation of either the letter or spirit of this provision.— To bring the case within the constitutional inhibition, it must be shown that requiring a public prosecution for the felony, as a pre-requisite to an action to recover for the property stolen, is unlawful' — not in accordance with the due or regular course of law ; and this takes us to where we started — to the inquiry, is it the law ?

The same answer holds good to the objection, that the principle, as several times asserted by this court, is violative of the fourteenth section of the first article of the constitution, which declares that “ all courts shall be open, and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law; and right and justice administered, without sale, denial or delay.”

The object of this provision was, not 'to interfere with, but to secure the regular administration of justice in every case according to the forms which the law prescribes. It does not operate, nor was it intended, to prevent those delays necessarily consequent upon the administration of justice. All courts are open, but parties must bring themselves within the law and the practice adopted in them, before they can invoke their aid in asserting remedies. The Chancery Court is open for the investigation of frauds at the suit of creditors against their debtors, but the creditor must first reduce his demand to judgment. So, a creditor may redeem the lands of his debtor under certain circumstances, but he must wait until he gets a judgment. Thu endorsee has his remedy against the endorser of a promissory note, but he must come into court generally with a judgment and return of nulla Iona against the maker, or the door of the court is forever closed against him. No one would contend that these laws, affixing conditions precedent to a right of recovery, were opposed to this clause in the fundamental law. Just so, with regard to the law before us. Public policy, and a just regard to the interest of the whole community, demand that felons should be brought to punishment, and should not be permitted to go at large, and plunder and prey upon the community at pleasure. In cases of larceny, no one is better calculated to become the prosecutor than the party whose goods have been feloniously taken and carried away. He is presumed to be more cognizant of the facts than any one else, and is therefore better prepared to conduct the prosecution to a successful termination. It is the duty of every good citizen, in consideration of the protection which he himself receives by the strong arm of the law, to see that offenders do not go unpunished, and to prosecute them for violations of the criminal code; and we see no reason why the law may not, in cases of this character, superadd the strong motive of self-interest, as an additional inducement to such prosecutions. Aside from such inducement, the temptation to compound felonies, or, at least, to let offenders pass unpunished, would be so great as, in many cases, to suppress prosecutions. To withhold such temptation, and as a stimulus to prosecute the offender, were among the reasons which lie at the foundation of the rule as it obtained at the common law — reasons which operate as strongly now as they did upon bur common-law ancestors ; and although other reasons, founded upon the forfeiture of the felon’s goods to the crown, were then superadded, which do not now obtain with us, yet the rule, although it works in many cases an apparent hardship, is not without considerations of sound public policy to sustain it. At all events, it is firmly established by numerous decisions of this court, to overrule which would furnish a precedent for unsettling the law far more injurious in its consequences than the rule itself. — McGrew v. Cato’s Ex’rs, Minor’s R. 8; Morgan v. Rhodes, 1 Stew. 70; Holmes v. Middleton, 3 Porter 427; Minter v. Blackburn, 22 Ala. 613.

A rule that has become settled law, is binding upon the courts, and is to be followed. — 1 W. Bl. R. 181; 1 Eden 250; 7 Bing. 279; 3 Ves. 529; 7 ib. 199; Ram on Judgt. 33, and cases cited. The case of Beasley v. Mitchell, 9 Ala. 780, was a correct decision, and is not opposed to the previous adjudications of this court, although, in delivering the opinion, the judge uses general language, which, if applied to any other than the facts presented by that case, might be calculated to mislead. That was a suit against a third party, who innocently acquired the goods. Here the action is against the alleged thief. Bearing in mind this distinction, there is no incongruity between that case and this.

The plaintiff' having introduced proof tending to show that the defendant and Blake were quite intimate, friendly, and acting in concert, it was competent for the defendant to prove that such intimacy or friendly relations did not exist. The proof, therefore, made by Mrs. Butler, at whose house Blake boarded at the time of the alleged intimacy, was strictly rebutting. Nor is it objectionable as stating a conclusion of the witness. She says, “he manifested great hostility to the defendant Martin.” The plaintiff had proved one condition of the mind, viz., that defendant and Blake were friendly ; this is proof of the opposite status, and if the plaintiff had desired the witness to be more specific as to the manner in which the alleged hostility was manifested, he should have propounded suitable interrogatories eliciting such explanation.

As to the testimony of Champion Butler, we need only remark, that he was not a witness sent into the neighborhood by the party introducing him to learn the general character of the witness Smedley. He removed into the neighborhood where Smedley had lived, as we may infer from the bill of exceptions, about the time Smedley left it, and it was competent for him to prove the general character of the witness at the time the latter left. Suppose Smedley had resided a great length of time, say forty years, in the neighborhood to which Butler removed, and during all that time had enjoyed a most •unblemished reputation for truth and veracity ; would it not have been competent for the party introducing him to prove this, to rebut evidence of bad character in a neighborhood to which he had recently removed, and where he had resided for only a short time ? It clearly would. The proof here offered is but the assertion of the same principle differently applied.

The bill of exceptions fails to show any error in the admission of the testimony of the witness Eiley. It does not appear that she had deposed to anything except Smedley’s general character, and the answer objected to is, “ I state what I have said about Joseph Smedley’s general character, both from my own knowledge, and what I have heard from other persons,” &c. In Hadjo v. Goodwin, 13 Ala. R. 718, it was held, that a witness may depose to the general character of another, if he swears he is acquainted with it in the neighborhood in which he lives, although he has never heard any of the neighbors speak of his character for truth.'1 This assumes, what was here conceded, that a witness may have personal knowledge of the general character of another, aside from what he has heard others say about such character ; and the witness may well speak from such personal knowledge of general character, not, however, from personal knowledge of the witness’ unworthiness aside from his general reputation or character. That the general character for truth and veracity of Smedley was “ very unfavorable,” is, in common parlance, but another mode of saying that it was bad in that regard, and in our opinion is unobjectionable.

Having examined all the points raised by the assignment of errors, we are unable to perceive that the court mistook the law in any particular. The judgment must therefore be affirmed.