Fowlkes v. Lewis

ON APPLICATION FOR REHEARING.

In response to the appellant’s application for a rehearing Ave Imve reconsidered the action of the court in refusing to give written charges 6 and 13 requested by him. The conclusion heretofore announced as to those rulings was, as the opinion formerly rendered shoAvs, influenced by an expression contained in the *562opinion delivered in the case of McLeod v. McLeod, 75 Ala. 485, to the effect that one’s abandonment of a prosecution which he is charged with having instituted maliciously and without probable cause is a circumstance to be considered by the jury in determining whether, at the institution of the prosecution, he had probable cause for believing the accused guilty of the offense with which he was charged. It Avas concluded that it was to be inferred from that expression that the acquittal of the plaintiff in a malicious prosecution suit is such a fact as may be looked to by the jury as one of a number of circumstances which, Avhen considered together, may be regarded as having some tendency to prove a lack of probable cause to believe that he Avas guilty of the offense with which he was charged. We are now of opinion that we gave to the use of the quoted expression a significance which cannot properly be attributed to it. Wé are impressed with the view that in doing so we failed to have due regard for the difference between the act of the prosecutor himself in abandoning the prosecution and the act of a jury in terminating it by an acquittal. The prosecutor’s relations Avith the two things stand upon such different footings that the expression by the court of the opinion that his conduct in abandoning the prosecution may be looked to by the jury in determining whether he did or did not have probable cause for instituting it cannot properly be regarded as indicating the propriety of the conclusion that, if there had been no abandonment of the prosecution, the acquittal of the defendant in it could as well, and for similar reasons, be considered by the jury in passing on the same inquiry as to the presence or absence of- probable cause. That inquiry has reference to the time of the institution of the prosecution, and is as to whether at that time the prosecutor did or did not *563have a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused was guilty of the offense with which he was charged. An acquittal is a result of another and possibly. very different situation subsequently disclosed by the evidence adduced on the tidal which may be very variant from that which was available to the prosecutor and was acted on by him in instituting the prosecution. In the trial the question is whether the evidence proves beyond a reasonable doubt the defendant’s guilt of an offense charged, and no issue as to the existence of probable cause for instituting the prosecution is involved or passed on. A prosecution instituted by one who, acting in good faith, and on the reasonable appearance of things, entertained the reasonable belief of acquittal in consequence of the death, disability, removal from the state or nonattendance of witnesses; of witnesses giving testimony on the trial at variance with the defendant’s guilt, may break down and end in an information imparted by them to the prosecutor; of disclosures of infirmities in their testimony not discoverable by him when he acted on it in instituting the prosecution; of the production of exculpatory evidence not accessible to him; of the individual idiosyncracies of the jurymen; or of the influence upon them of sympathy or partially, or of any one or more of an indeterminate number of causes to Avhich may be attributed a verdict of a jury different from what might reasonably have been anticipated. It is plain that an acquittal may be due to any one or more of so many influences the operation of which to that end is not at all incompatible Avith the existence at the time the prosecution was instituted of a reasonable cause for the prosecutor to believe that the defendant was guilty of the *564offense with which he was charged, that it cannot properly be regarded as furnishing the whole or a part of a sufficient support for the conclusion that the prosecutor acted without probable cause in instituting the prosecution. It is so much in the ordinary course of things for one to be acquitted of an offense of which, at the time the j>roseCution Avas instituted, there Avas probable cause to believe he Avas guilty that his acquittal cannot be recognized as proving or rendering more probable the nonexistence of such probable cause Avhen the prosecution Avas begun.

The conclusion is that written charge 13, in stating that “acquittal does not tend to establish want of probable cause,” asserted a correct proposition applicable to the evidence in the case; and that the refusal to give it was reversible error.- — Bekkeland v. Lyons, 96 Tex. 255, 72 S. W. 56, 64 L. R. A. 474; Laing v. Mitten, 185 Mass. 233, 70 N. E. 128; Cooley on Torts (3d Ed.) p. 336.

The use in refused charge 6 of the words “probable cause,” instead of “Avant of probable cause,” kept it from having the meaning probably intended, and rendered it confusing, Avith the result that the court Avas justified in refusing to give it.

In the argument filed in support of the application for a rehearing i't is insisted that the court was in error in holding that the general affirmative charge requested by the defendant Avas properly refused. In this connection much stress is laid upon Avhat Avas said in the opinion rendered in the case of Louisville & Nashville R. R. Co. v. Stephenson, 6 Ala. App. 578, 60 South. 490. Expressions used in that opinion are to be considered in the light of the fact that the testimony offered by the plaintiff in that case showed that the defendant had probable cause for the institution of the prosecu*565tion, and that the court regarded the evidence as a whole as leaving no room for dispute on that score. Such is not the.case here. The plaintiff in no way vouched for the credibility of the information received by the defendant or for his good faith in acting upon it. Though undisputed evidence showed that the defendant received information of the commission bjr the plaintiff of the offense with which the latter was charged, that this information was fully laid before a lawyer for his advice, and that the prosecution was instittued only after the lawyer had advised that course, yet the record does not enable us to affirm that the evidence as a whole required the inferences that the information received by the defendant and upon which he acted was such as reasonably could have been relied upon by him as worthy of credit, and that he in good faith believed that the plaintiff was guilty of the offense for which he' was prosecuted. As to these features of the case, as was suggested in the opinion heretofore rendered, the oral testimony upon which the case was tried may have afforded support for conclusions unfavorable to the defendant’s contentions.

A. record does not show that a party was entitled to the general affirmative charge requested in his behalf when it fails to show that the evidence in the case afforded no basis for an inference adverse to his claim.

Application for rehearing granted, former judgment of affirmance set aside, and reversed and remanded.