Opinion
6 Div. 780.
March 22, 1928.
Appeal from Circuit Court, Cullman County; O. Kyle, Judge.
F. E. St. John, of Cullman, for appellant.
There was no evidence in the case connecting defendant with the institution of the prosecution, and the motion to exclude plaintiff's evidence was erroneously overruled. Boshell v. Cunningham, 200 Ala. 579, 76 So. 937. The portion of the oral charge excepted to was erroneous. Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754; Fowlkes v. Lewis, 10 Ala. App. 543, 65 So. 724; Piggly-Wiggly Co. v. Rickles, 212 Ala. 585, 103 So. 860; Brown v. Selfridge, 224 U.S. 189; 32 S.Ct. 444, 56 L.Ed. 727. Defendant's requested charges correctly state the law, and should have been given. The verdict was opposed to the great weight of the evidence, and a new trial should have been awarded.
A. A. Griffith, of Cullman, for appellee.
Whether defendant was connected with the prosecution was, under the evidence, a question for the jury. Ala. Co. v. Norwood, 211 Ala. 387, 100 So. 479; Abingdon Mills v. Grogan, 167 Ala. 153, 52 So. 596; Molton R. Co. v. Murchison, 212 Ala. 561, 103 So. 651. The oral charge of the court correctly stated the law. Hanchey v. Brunson, 175 Ala. 236, 56 So. 971, Ann. Cas. 1914C, 804; Veid v. Roberts, 200 Ala. 576, 76 So. 934; Ewing v. Sanford, 19 Ala. 605; Kemp v. York, 16 Ala. App. 675, 81 So. 195; Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308, 30 Am. St. Rep. 79. Defendant's requested charges were well refused, as ignoring parts of the evidence.
As we understand the decisions with reference to the acquittal of a person charged with crime as an evidential fact of the existence or nonexistence of probable cause in a civil action, it is admissible when the acquittal amounts to a mere discharge by a committing magistrate or where a grand jury failed to indict after investigating the charge. This fact, however, would not be conclusive evidence of the want of probable cause, but only prima facie evidence sufficient to shift the burden of proof to the defendant. Hanchey v. Brunson, 175 Ala. 236, 56 So. 971, Ann. Cas. 1914C, 804, and authorities cited, including Newell on Malicious Prosecutions, p. 282, and 2 Greenleaf on Evidence, § 435. On the other hand, it seems well settled that the acquittal of an accused upon a final trial is not even prima facie evidence of the want of probable cause. Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754, and cases cited. This distinction is evidently based upon the logical theory, that, where there is a final acquittal, it rests upon a failure to establish guilt beyond a reasonable doubt, while upon a preliminary examination or the finding of an indictment by a grand jury the failure to bind over or indict involves merely the nonexistence of a probable cause. The plaintiff was acquitted by Judge Griffin acting simply as a committing magistrate, and the trial court did not err in the excepted to portion of the oral charge.
The trial court did not err in declining the motion to exclude all of the plaintiff's evidence upon the idea that this defendant did not authorize or ratify the prosecution. In the first place, this method of eradicating evidence has been often condemned, and, second, there was evidence from which the jury could infer that the superintendent authorized Holland to start the prosecution.
There was no error in refusing the defendant's charge, made the basis of the tenth assignment of error. If not otherwise faulty, it was misleading and confusing in an attempted distinction between the information Holland may have received as an individual and how he acted as agent. He may have received the information in his individual capacity and subsequently acted for the defendant and with authority when swearing out the warrant.
There was no error in refusing the defendant's charge embodied in the twelfth assignment of error. It instructs a verdict for the defendant upon the good faith and honest belief of the agent, Holland, which will not suffice as the information must not have impressed him alone, but the test is what effect it may have had upon the judgment of ordinarily prudent and reasonable men. Lunsford v. Dietrich, 93 Ala. 569, 9 So. 308, 30 Am. St. Rep. 79; Gulsby v. L. N. R. R. Co., 167 Ala. 129, 52 So. 392.
We think the great weight of the evidence was not only sufficient to impress Holland, but the ordinarily prudent man, that a probable cause existed of the plaintiff's guilt when the prosecution was commenced, and the trial court erred in not granting the defendant's motion for a new trial.
Reversed and remanded.
SAYRE, SOMERVILLE, and THOMAS, JJ., concur in the reversal upon the point indicated, and also think the defendant was entitled to the general charge because the evidence failed to show that the prosecution was authorized by the defendant.
GARDNER and BOULDIN, JJ., concur in the opinion, except as to the point upon which the case is reversed, and think the case should be affirmed and therefore dissent.
BROWN, J., not sitting.