74 Ala. 374 | Ala. | 1883
— The present action is one for malicious prosecution, instituted by the appellee, Rates, agains the appellant, Motes, who was defendant in the court below. The prosecution complained of, as the basis of the action, was an indictment for assault and battery. It was shown that this prosecution liad terminated in the acquittal of the accused, who is the plaintiff in this suit. The contested issues were as to the existence of malice, and of probable cause on the part of the prosecutor, who, of course, is here the defendant.
1. The fact that the plaintiff was a minor, under twenty-one years of age, at the time of the alleged assault and battery, for which he was indicted at the instance of the defendant, was obviously irrelevant, and the court erred .in allowing proof to be made of it in the present suit. It had no proximate tendency to establish the proof or disproof of the principal issue— bearing neither upon the question of malice, nor of probable cause. Its only effect would be to excite the sympathy of the jury, and thus tend to aggravate the amount of damages recovered, through an instrumentality not to be justified in the eye of the law, which gauges its results by the rules of justice and not of sympathy.
3. It is objected that the court below allowed the plaintiff’s counsel too wide a latitude, in his comments upon the evidence discussed before the jury. In the case of Cross v. The State, 68 Ala. 476, we announced the principles which, in our judgment, should govern in cases of this character; and these rules were re-affirmed in the case of Wollfe v. Minnis, at the present term. We see nothing in the discussion of counsel in this cause, which we can safely say is so obnoxious to criticism as to be violative of these principles, the enforcement of which must necessarily be regulated, very largely, by the sound discretion and good judgment of the nisi prius court. It is not contended that counsel has gone out of the record, so far as to state as facts matters not in evidence. The most that can be said is, that he has taken great latitude in deducing questionable inferences from facts already in evidence. We can not perceive that he has, in doing this, infringed any rule of law, which will authorize a reversal of the cause, apart from other errors in the record. — Cross v. The State, 68 Ala. 481-483.
4. There is but one other question necessary to be discussed, and this is raised by the charges given by the court on the request of the plaintiff. It has reference to a portion of the evidence detailing the circumstances of the alleged assault and battery perpetrated by plaintiff on the defendant, upon which was based the prosecution constituting the gravam.en of this suit. The purpose of this evidence was to show want of probable cause, as well as the existence of malice, in the prosecution. The defendant had rented to the plaintiff’s brother a few acres of land in a large field belonging to defendant, and the plaintiff was employed by the lessee to aid in cultivating it. This rented land was accessible by a public road, and also by a private path, which was the shorter route; the latter leading through an uncultivated portion of defendant’s field. It was agreed, at the time of the renting, that the lessee should use the public road, in going to, and returning from the rented land. The plaintiff, however, persisted in using -the private path, although several times forbidden its use. ' Upon the day of the difficulty, the defendant and his son met the plaintiff coming along the path. The defendant “ told plaintiff to turn back, and go out. of the path, and go to his field the other way;”
We find no evidence in the record, tending to show that the plaintiff, Bates, had any claim of legal right to be upon this portion of the defendant’s field. It is shown that the lessee agreed to use the public road; and his employees, or sub-tenants, had no greater rights than lie had. If the plaintiff’s alleged custom in using the pathway, for some time previous, could be construed into a permission by defendant to do so, this was, at best, only a parol license, which was revocable at the pleasure of the person giving it. Every license of this kind, by which one is permitted without, consideration, to pass over the lands of another, is essentially revocable in its very nature, its continuance depending upon the mere will of the person by whom it was created, or granted. — 3 Kent. Com. 452; Ricker v. Kelly, 18 Arner. Dec. 40-41, note; Riddle v. Brown, 20 Ala. 412.
The warning previously given by defendant, Motes, forbidding him to use this pathway, operated as a revocation of any parol or verbal license which may have been inferentially implied. After this warning, tire plaintiff’s entry upon this portion of defendant’s land, without some legal cause, or good excuse, of which the record discloses no evidence, not only made him a trespasser, but rendered him liable to prosecution for a misdemeanor, upon proof that the warning was given within the six months preceding the unlawful entry. — Code, 1876, § 4419; Watson’s Case, 63 Ala. 19.
5. The possession of the defendant being unlawfully invaded, he had a right to employ force to remove the intruder, if the latter failed or refused to go on request. Tie could, of course, employ only so much force as was necessary, and no more. — Cooley on Torts, 167-168.
Tlie charge of the court tended to mislead the jury, both as to the rights of the defendant, and the proper construction of the command given Ms son. The plaintiff had no right to intrude upon any portion of defendant’s field, except the public road and the rented land. Motes had a right to use such force as was necessary to put him out or off of any other portion of his premises, upon his refusal to leave on request. What defendant meant by his order — “put him out ” — must be interpreted by his previous warning to the plaintiff, requesting him
Reversed and remanded.
