Quinn v. Crowell , 1839 Pa. LEXIS 212 ( 1839 )

The opinion of the Court was delivered by

Gibson, C. J. —

There is no precedent for a bill of exceptions in the case of introductory evidence to the court, where the evidence in chief was properly admitted or excluded; and in Brown v. Downing, (4 Serg. Rawle, 494,) it was ruled that it does not lie. A formal bill of exceptions to evidence admitted, asserts that it was given to the jury, Allen v. Rostain, (11 Serg. & Rawle, 374;) whence it is inferable that the improper admission or rejection of evidence not in chief, is not a subject of error. The question regards not the regularity of the process, but the soundness of the conclusion. What boots it then that, even were the proper course otherwise, parol evidence of the witness’s disqualification was heard before he himself was heard. The order of proof, even to a jury, is not the subject of error; and to examine him to his own competency, would have assumed the fact in controversy, which, it was determined in Griffith v. Reford (1 Rawle, 197) cannot be done. But it is conclusive that the witness was actually admitted; and the propriety of the process by which his competency was tested, cannot be questioned by the party who called him. Pie had the benefit of his testimony unimpaired by the introductory examination, which is all he had a right to ask.

The plaintiff’s admission in respect to the character of a witness called by him in support of his objection to the witness already mentioned, was properly rejected. The fact of genera] character may doubtless be proved by a party’s confession; but the objection to the competency of the witness had been disposed of by his reception in chief; and as the impugning witness had not testified to any fact before the jury, the quality' of his reputation for veracity had ceased to be a matter of relevancy in the cause.

The evidence offered with a view to show the recorder’s charge on the trial of the indictment; the actual grounds on which the jury proceeded ; and that one of the jurors would have been led to a different conclusion by a view of the premises where the larceny'' was said to have been committed — and all this to take from the effect of the acquittal — was properly excluded. The object was to detract from the effect of a record by parol evidence of individual opinion, which is incompetent for any purpose, except on special grounds, and in a very few cases. Merp acquittal is not proof of malice ,and probable cause — it is a circumstance -which opens a way for it — and it certainly cannot be deprived of its legitimate effect, by opinions previously abandoned, or subsequently entertained. It was open to the defendant to show probable cause by proof of facts, but not by the opinion of individuals.

Finally, the record of the defendant’s acquittal on the indictment for the larceny of other property alleged to have been involved in the same act, but owned by a different prosecutor, was properly received. That prosecutor had, in the trial of the present action, sworn to the simultaneous larcenies of the defendant’s goods and his own ; for which, as he testified, he also had instituted a prosecution; and surely it was competent to the plaintiff to show what had become of it. The question of his guilt or innocence on that occasion, was inseparably' connected with the question of probable cause in this; at all events, the evidence, if unresisted, might have affected the quantum of the damages. The character of a plaintiff in an action for a malicious prosecution, is not in issue, and itis consequently unassailable by proof of reputation or particular instances of misconduct. Here evidence of a particular offence had unavoidably crept in, as inseparable from the attempted proof of probable cause, and there was therefore the greater reason that it should be open to explanation.

Judgment affirmed.