Snead v. Jones

53 So. 188 | Ala. | 1910

Lead Opinion

ANDERSON, J.

As a rule a defendant in a suit for malicious prosecution is not responsible for any wrong or abuse in the manner of making the arrest, which was not directed by them, or in which they did not participate or subsequently approve. — Marks v. Hasting, 101 Ala. 172, 13 South. 297. But if there is proof tending to show that the defendant aided in the arrest or ratified same, it is competent to show how the plaintiff was treated and what was said and done at the time of the arrest or subsequent thereto, so long as the defendant or his agent is present and aiding and abetting the officer. — Motes v. Bates, 80 Ala. 385; Id. 74 Ala. 374; Shannon v. Simms, 146 Ala. 673, 40 South. 574. There was proof in this case from which the jury *147could infer that Freeman was acting for the defendant in procuring the indictment, and that H’ayes was acting for him when he went with the sheriff to arrest the plaintiff. Hayes and Freeman were both employed by the defendant, and the plaintiff testified to certain statements made by the defendant* and from which the jury could infer that he ratified the act of Freeman in procuring the indictment and the conduct of Hayes in assisting in the arrest. The trial court did not therefore err in letting the plaintiff show how and the circumstances under which he was arrested and what ivas done with him by the officer and Hayes.

There was no error in allowing the plaintiff to introduce evidence of his good character, as evidence to impeach him had been previously offered. It had been shown that he had been convicted for crime involving moral turpitude. — Bell v. State, 124 Ala. 94, 27 South. 414.

The defeudant was not entitled to the general charge upon the theory that he did not procure the indictment or that the charge was true, as these were questions for the determination of the jury. Nor was the defendant entitled to the general charge upon the idea that the plaintiff failed to prove a judicial dismissal of the prosecution. We think the judgment entry shows the granting of the solicitor’s motion to nolle prosequi the case and a discharge of the defendant and which was sufficient as a judgment of dismissal and which is unlike the judgments heretofore passed on and condemned by this court. None of them involved a nolle prosequi.

Charge 1 refused the defendant was covered by given charge 6.

There was no error in refusing charge 6 requested by the defendant. It invaded the province of the jury *148and was otherwise bad for pretermitting some of the essentials of false pretense.

The jury saw and heard the witnesses, a.nd we are not prepared to say that the verdict was so palpably against the weight of the evidence as to warrant ns in disturbing same.

The judgment of the circuit court must be affirmed.

Affirmed.

Dowdell, C. J., and McClellan, Mayfield, Sayre, and Evans, JJ., concur.



Rehearing

On Rehearing.

Dowdell, C. J., and Anderson, McClellan, and Evans, JJ., adhere to the former opinion and the application is overruled. Simpson, Mayfield, and Sayre, JJ., think that the trial court erred in not granting a new trial, and that the case should be reversed. They therefore dissent.