[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 87 ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
On Rehearing. The complaint avers that the defendant "undertook to drive defendant [meaning plaintiff] away from his own house where the body of his father lay," and "did then and there * * * order defendant to leave said premises, greatly to his humiliation"; and that defendant "did procure said arrest and contrive the plaintiff's shame and humiliation," and caused him "great mental anguish." But there is nothing in all of this that presents any issue as to plaintiff's affection for his deceased father, nor any assertion of mental suffering on that account, nor does the complaint claim damages in that behalf. Hence we must adhere to the conclusion that evidence of plaintiff's social neglect of his father before his death was improperly admitted.
With respect to charge 9, given for defendant, counsel for defendant insist that, since it is framed in the exact language of the opinion in Ewing v. Sanford, 21 Ala. 157, 163, it was necessarily a correct instruction, and was therefore properly given.
The question in that case was whether the trial judge erred in refusing to charge the jury "that, if defendant believed at the time he made the affidavit that the conduct of Sanford, forming such ground of accusation, amounted to the offence charged," they must find for the defendant. An examination of the opinion, in its entirety, shows that the court was dealing with the question of malice and not probable cause, and was defining what state of facts would, in the absence of probable cause, serve to rebut the implication of malice — assuming, as did the refused charge, that the prosecutor acted under an honest belief that the facts showed the guilt of the accused. The opinion was so understood and cited to that conclusion in Lunsford v. Dietrich, 86 Ala. 250, 253, 254, 5 So. 461, 11 Am. St. Rep. 37, and in Sloss-Sheffield, etc., Co. v. O'Neal,169 Ala. 83, 89, 52 So. 953. So far as we are advised, it has never been cited or approved as a correct definition of probable cause, which would, of itself, constitute a defense.
It is true that this court, as well as many others, has defined probable cause, in the abstract, as:
"Such a state of facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably and without prejudice, to believe, on the facts within his knowledge, that the person accused is guilty." Jordan v. A. G. S. R. R. Co., 81 Ala. 220, 226,8 So. 191, 192; Lunsford v. Dietrich, 93 Ala. 565, 569, 9 So. 308, 30 Am. St. Rep. 79.
But, to make such facts and circumstances available as a defense, the defendant must have himself, in consequence thereof, entertained an actual and honest belief in the *Page 89 guilt of the accused, as the cases cited in our original opinion show.
Had charge 9 omitted the last clause asserting that the conditions predicated would per se protect defendant against liability, it would, though incomplete, have afforded no basis for reversible error.
Finally, we must remind counsel that statements of law, found in judicial opinions, are not always proper for instructions to be given to juries in other cases, and that, indeed, they may be grossly erroneous when so applied. So. Ry. Co. v. Hayes,198 Ala. 601, 73 So. 945.
For the reasons stated, the application for rehearing will be overruled.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.