Motes v. Bates , 80 Ala. 382 ( 1885 )

CLOPTON, J.

When this case was before the court on a former appeal (74 Ala. 374), it was held, that it is permissible for the plaintiff to prove the conduct and movements of the defendant on the day of the plaintiff’s arrest, and while he was in custody, endeavoring to give bail. The ruling is founded on the settled doctrine, that it is competent to show any acts, conduct or words of the defendant, tending to establish malice, or other improper motive in the prosecntion, or that he was moved by a-purpose to vex, harass or oppress the plaintiff, as a ground for allowing exemplary damages. But, on the last trial, the plaintiff went beyond this, and offered evidence of a conversation between himself and the sheriff in front of the jail yard, which was admitted by the court, against the objection of defendant. The defendant can not be held responsible for any act or declaration of the sheriff, beyond the scope of the usual, proper and legal mode of executing such process, which the defendant did not instigate, authorize, or participate in. The only purpose, for which the conversation could have been introduced, was to excite the sympathy of the jury, and induce them to give heavier damages. The’ evidence being prima facie irrelevant, it is incumbent on the plaintiff to make it relevant. As there is an absence of evidence tending to show that the defendant had any knowledge of the purport of the conversation, or any connection therewith, it should have been excluded. — Jackson v. Smith, 75 Ala. 97; Lienkauf & Strauss v. Morris, 66 Ala. 406.

What was the objection to the question propounded to the witness, Folmar, we are not informed. We suppose it went to the generality of the interrogatory. There has been, and still is, an irreconcilable conflict of opinion, as to the proper form of the question to be propounded to an impeaching witness, some of the authorities holding, that it should be restricted to general character for truth, and others approving the general inquiry. The form of the question is a rule of practice, which was defined in Ward v. State, 28 Ala. 53, where the general inquiry, substantially the same as in the present case, was held to be proper, and has since been regarded as the settled l'ule. Holland v. Barnes, 53 Ala. 83. Such has been the practice too long to be now disturbed.

The charge relating to the advice of counsel as a defense is subject to criticism. It makes a requirement of the defendant more extensive than the rule. In order to avail himself of the advice of counsel, it is not requisite that he shall make a full and fair disclosure of all the facts in the case; but of all the facts bearing on the case, which he knows, or could have ascertained by reasonable diligence. — Steed v. Knowles, 79 Ala. 427; Trowman v. Smith, 12 Amer. Dec. n. 266. If any material, relevant fact is culpably withheld, or if the defendant did not act upon the advice received in good faith, he will be deprived of any protection, to which he would, otherwise, be entitled.

On the facts presented on the former appeal, it was held, that the use of the pathway by the plaintiff, being by permission of the defendant, was only a parol license; and that such license, without consideration, is revocable at the will of the person by whom it is granted. The present record contains some additional testimony of what occurred at the time of making the contract, on which is based a charge respecting the right of the plaintiff to use the pathway. It appears that there were both a public road, and a private path over other land of the defendant, leading to the rented field. If there was no agreement, express or implied, that the lessee of the premises, might use the path, no implied obligation to permit its use arises, because of greater convenience, there being another accessible public way. It is true a parol license, coupled with an interest, may be irrevocable. If it was a part of the contract, so as to constitute its use the equivalent to an appurtenance to the rented premises, the defendant is estopped from prohibiting its use by the lessee or his employees, so long as the use was not abused. The defendant would also be estopped, if the use of the path was held out to the lessee as an inducement to reht the field, on which he relied and acted. But a mere representation, that when he went to the field with a wagon, or home, he could go the roadway, followed by subsequent use of the path, without objection, when nothing was said about the pathway, and the use of it was not an inducement on which the lessee relied and acted, or was not an element of the contract, would amount to no more than a parol license,revocable at the will of the defendant. — Riddle v. Brown, 20 Ala. 412; Huff v. McCauley, 53 Pa. St. 206; Nettleton v. Sikes, 8 Met. 34; 1 Wash. on Re. Prop. 628-638. It must be observed, however, that a witness can not testify to an uncommunicated motive or inducement. He must state the facts, and the jury must draw the conclusion.

While a parol license, being in its nature personal, ordinarily •is not assignable, the use of the path by an employee of the lessee, who is engaged in cultivating the field, is not an assignment of the license. If it be conceded, however, that the inducement is sufficiently stated in the charge, the hypothesis omits the material facts, whether the lessee acted on the faith of the inducement, and whether the plaintiff was his employee. Whatever may have been the right of the lessee to use the path, it did not enure to the plaintiff, unless he was, at the time, employed on the rented premises.

There are respectable authorities, which hold, that a true bill found by a grand jury is prima facie evidence of probable cause, in an action for a malicious prosecution. — Bell v. Pearcy. 11 Ire. L. 233; Brown v. Griffin, Cheves 32. We are unwilling to follow these authorities, which can not be supported by satisfactory reasons, or maintained on principle. A judgment, on the merits, except in proceedings inrem, is not evidence against one, who had no notice, and of whose person the court did not have jurisdiction, of any fact, other than its existence. A judicial recognition of a fact is not a self-disserving admission by a party, who has had no opportunity of being heard. The proceedings of the grand jury are protected by the seal of secrecy, unless their disclosure is necessary to the public interests, or to the maintenance of private rights. An indictment found is, by statute, prohibited to be entered on the minutes, and is not to be inspected by any person, other than the presiding judge, the solicitor, and the clerk of the court, until the defendant has been arrested, or has given bail for his appearance. The finding of an indictment is an ex parte proceeding, conducted with closed doors, and its privacy secured by solemn oath. While an indictment is an accusation in writing, charging a person with an indictable offense, presented by a component part of the court; though it is a judicial affirmation, that the evidence before the grand jury is sufficient to put him on trial before a petit jury; it is an accusation and affirmation founded on such evidence as the prosecuting officer, the grand jury, and the prosecutor, if any, may see proper to select and adduce; and it is important to impair, on the trial of the accused, the presumption of innocence. The person charged not permitted to be present; has no opportunity of being heard ; can bring no evidence, and can not cross-examine the witnesses produced. To admit such judicial finding as prima faoie evidence of probable cause will enable a malicious prosecutor, by his own evidence alone,-or by manipulating other testimony, to arm himself with a prima facie defense against a subsequent action. The charge requested by the defendant was properly refused.

Reversed and remanded.