Rutherford v. Dyer , 146 Ala. 665 ( 1906 )

HARALSON, J.

1. The affidavit and warrant on which the plaintiff in this suit was arrested, in the alleged malicious prosecution suit against her, it may be admitted falls short of being perfect, — a question we need not decide, — but the defendant here made the affidavit and caused the warrant to be issued in that case for the arrest of the plaintiff, and under which she was arrested, and he cannot now be heard to question the sufficiency of either of them. They were competent evidence and properly admitted against the objection of the defendant, as constituting the basis of the alleged malicious prosecution. — Forrest v. Collier, 20 Ala. 175, 56 Am. Dec. 190; Thompson v. Richardson, 86 Ala. 488, 11 South. 728.

The objection that the transcript from the justice of the peace court did not show that the _charge against Sfusie Dyer liad been judicially investigated and the prosecution ended, ivas without merit.

2. The summons and. complaint in the justice of the peace court, show a suit by A. J. Dyer, as next friend of Susie Dyer, and the complaint in the circuit court shows the same thing. It sufficiently appears that it was not his individual suit, and the court committed no error in refusing to. exclude all the evidence on the ground that that suit was in the name of A. J. Dyer as plaintiff individually.

3.. The objection to the question asked the justice of the peace, when examined as a -witness, “Did not defendant, W.- M. Rutherford, state to you, immediately before the case against Susie Dyer was called, that on account of Susie Dyer being a minor and acting nner the influence of her mother, Fanny. A. Dyer, that he desired the prosecution against Susie Dyer dismissed?” ivas properly sustained. The evidence sought was open to the construction, that the defendant was attempting in what he told the justice, to manufacture evidence to relieve himself of a wrong he had already done said Susie Dyer.

4. The property on which said Susie Dyer was arrested for trespassing, was what was known as the Experimental Garden Reservation in Vinemont, consisting of a number of acres. A. J. Dyer testified that on the 22d of July, 1903, and for months prior thereto', he ivas in the actual possession of said laud, exercising acts of possession and ownership over it. The witness was shown a written lease from John Moffat, the owner of the premises, to J. Z. Barneard, for considerations therein expressed, dated the 8th of February, 1902, for two years, with the privilege of three which lease was signed by the said Moffat and Barneard. ' On the back of the lease, was a written transfer acknowledged before a notary public. Said Dyer testified that he knew the writin of said Moffat and Barneard to the lease, and that of Barneard to the transfer, and that said signatures were in the handwriting, respectively, of the parties purporting to have executed them. The defendant objected to the introduction of the lease and transfer in evidence, because the execution of the lease and transfer' had not been properly proven, and because the evidence proposed was illegal and irrelevant. The proof offered of the execution of the papers was direct, positive and competent. If said Moffat was the owner of the property, which is not denied, and it was in the possession of the said Dyer under said lease, and said Susie Dyer went on the property eluriug the time of the lease, she was not a trespasser against the defendant. There was, furthermore, no' error in allowing the witness to state that he went on the land immediately after the lease, repaired its fences and pruned its trees. Nor was there error in allowing the witness, Fanny A. Dyer, the wife of A. J. Dyer, to state that the lease from Barn card to A. J. Dyer, came to her through the mail with the transfer on it. The evidence tended to show that Barn card lived out of this state. — E. & P. M. Co. v. Gibson, 62 Ala. 369.

5. There was no error in charges 1, 2 and 3 given as requested for plaintiff. — McLeod v. McLeod, 75 Ala. 486; So. C. & F. Co. v. Adams, 131 Ala. 156, 32 South. 503.

6. There was no re>e>m for the general charge reepiesteel by the defendant.

Thee secemel refused charge, if otherwise correct, is ar gumemtative, and subjeet te> the vice of singling emt and making preeminent a particular fact. The fourth eeliarge is subject to the latter vice, and is misleaeling.

The fifth charges, whatever may be said e;f the principle gemevrally, was: edearly bad in the case. A deesire for re:venge or to injure the defendant is not necessary te) subject the prosecutor to liability. “Any other motive than a bona fide purpose to bring the accused te* punishment as a violator of the criminal law, e>r associated with such bema fide purpose, is malicious.” — Lunsford v. Dietrich, 93 Ala. 569, 9 South. 308, 30 Am. St. Rep. 79.

Affirmed.

All the justices concur.