O'Neal v. McKinna

• Decision Date: 09 December 1897
• Citation: 116 Ala. 606,22 So. 905
• Parties: O'NEAL v. MCKINNA.
• Court: Alabama Supreme Court

22 So. 905

116 Ala. 606

O'NEAL v. MCKINNA.

Supreme Court of Alabama

December 9, 1897

Appeal from circuit court, Geneva county; J. W. Foster, Judge.

Action by A. T. McKinna against C. A. O'Neal for malicious prosecution and false imprisonment. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

This action was brought by the appellee, A. T. McKinna, against the appellant, C. A. O'Neal. The complaint contained two counts, as originally filed. In the first count $1,000 damages where claimed for "maliciously, and without cause therefor, arresting and imprisoning the plaintiff, or causing the plaintiff to be arrested and imprisoned, on a charge of obtaining goods by false pretenses, for one day viz. on the 7th day of September, 1894." The second count was for malicious prosecution, and was in the form set out in Code 1886, § 20. Plaintiff, by leave of the court filed an additional count to his complaint, marked "Count 3." Said count claimed $1,000 damages for unlawfully causing plaintiff to be arrested and imprisoned against the will of plaintiff, on a charge of obtaining goods by false pretenses, for one day, viz. on the 7th day of September, 1894. Defendant demurred to said third count, and assigned the following grounds of demurrer: "(1) It is not shown by said count when plaintiff was arrested and caused to be imprisoned by defendant. (2) It is not shown from said count that defendant acted without probable cause in the alleged arrest and imprisonment of plaintiff. (3) it is not averred in said count that the alleged arrest and imprisonment of plaintiff was without a warrant or legal process." This demurrer, as shown by the judgment entry was overruled by the court. There were several pleas, to which demurrers were interposed, and there were replications filed on behalf of the plaintiff, to which demurrers were interposed; but, under the opinion, it is unnecessary to set these pleadings out in detail.

M. F Cowan, a witness for the plaintiff, testified that he was on September 7, 1894, an acting justice of the peace for Geneva county; that there was an affidavit made before him and a warrant issued for the arrest of plaintiff; that he did not know where the said affidavit and warrant were, but that his best recollection was that he left the same with the grand jury of said county at the fall term, 1894, of said court; that if he did not leave it with the grand jury he would have put it with his other papers; that he had searched for the affidavit and warrant among the papers in the places where the affidavit and warrant were likely to be found, and where he usually kept such papers, and was unable to find them; that his best recollection was he left the same with the grand jury, and has not seen or heard of same since.

Upon the introduction of R. J. Purvis, clerk of the circuit court for Geneva county, as a witness, he was asked by plaintiff to state if the papers used in evidence before the grand jury at the fall term, 1894, of the circuit court of said county, were turned over to him at the adjournment thereof. The defendant objected to this question, on the grounds (1) that said evidence thus called for would be illegal, irrelevant, and incompetent; (2) that it did not appear that the affidavit and warrant for the arrest of plaintiff were turned over to the witness by the grand jury at adjournment; (3) that it did not appear that all the papers in use by the grand jury at said session were turned over to witness; and (4) that witness was not the proper custodian of said papers. The court overruled the objection, and the defendant duly excepted. The witness replied to the question that the docket and all the papers were turned over at the adjournment of that particular term by its foreman. The defendant moved to exclude the answer of the witness upon the grounds stated in its objection to the question just asked. The court overruled the motion, and the defendant duly excepted. The witness further testified that he had made search for the affidavit and warrant in this case, and that his search was made in places he usually kept such papers; that he was unable to find them, after a diligent and careful search. This witness further testified, on cross-examination, that he did not know whether or not the said grand jury ever had in its possession the said affidavit and warrant for the arrest of plaintiff; that he did not know whether the said grand jury destroyed said papers or not; that he did not know that the said grand jury turned over to him all the papers they had at its said session; that the foreman of said grand jury turned over to him the indictment record and a batch of papers which it had in its possession at the said term; that he made diligent search, and could not find the affidavit and warrant,-looking through carefully the said batch of a papers delivered by the foreman of said grand jury, and could not find them; that he never saw said affidavit and warrant, and did not know that the same was ever turned over to him. On redirect examination of the said Purvis, he was asked the following questions by plaintiff: "Is it not a fact that the custom at this court is, when the grand jury adjourns, that the foreman of the grand jury turns over to the clerk of the circuit court the indictment record or docket, together with the papers, other than the indictments before the grand jury?" To this question the defendant objected, upon the ground that the evidence thus called for was illegal, irrelevant, and incompetent, and also that it did not appear that the witness had any knowledge of any such custom; (2) that the said witness, as clerk, was not the proper custodian of said papers; (3) that it did not appear that the particular affidavit and warrant in this case was ever turned over to the said winess, as clerk; and (4) that it did not appear that the said grand jury did not destroy said papers. The court overruled the objection, and the defendant excepted. The witness replied to said question "that the custom was as stated in the said question; that is, when the grand jury adjourns the foreman of the grand jury turns over to the clerk of the circuit court the indictment record or docket, together with the papers other than the indictments before the grand jury." The defendant moved the court to exclude the answer of said witness upon the ground stated in the objection to the question relating to such custom. The court overruled the motion, and defendant duly excepted. This witness further stated that he did not know that it was the habit of the grand jury to turn over all papers they have before them. Defendant against moved to exclude his testimony relating to the custom upon the ground stated just above, and the court overruled the motion, and the defendant excepted.

The said witness Cowan was again introduced, and the following question was asked him by plaintiff, namely: "Please state who made the affidavit for the arrest of plaintiff, and then state its contents, as well as you can recollect." The defendant objected to this question upon the ground that "no sufficient predicate had been made for the introduction of secondary evidence of the contents of said affidavit." The court overruled the objection, and the defendant excepted. The witness replied to said question that defendant swore out the warrant for the arrest of plaintiff, and it charged him with obtaining goods by false pretenses. The defendant moved the court to exclude the said answer, upon the grounds (1) that no sufficient predicate had been laid for the admission of secondary evidence and the contents of said affidavit; and (2) that it did not appear that said affidavit had been lost or destroyed, and that it did not appear but that said affidavit was still in the possession of the said grand jury, or some member of said body. The witness further stated the contents of the warrant issued by him upon the affidavit, against the objection and exception of defendant; and the defendant moved the court to exclude the evidence touching the contents of said warrant upon the same grounds as were made for the exclusion of the contents of said affidavit; but the court overruled the motion, and defendant excepted.

Upon the introduction of one Broxson as a witness, who testified that he heard the defendant state to the plaintiff that, if he did not pay the debt which was due the defendant and one R. Tillis, he would have the plaintiff arrested, and upon this witness further testifying that he was a brother-in-law of the plaintiff, the defendant then asked the witness the following question: "Did not McKinna try to get you, just shortly before the arrest, to run some teams of his off into Florida to prevent them from being attached for the debt due by plaintiff to defendant and R. Tillis?" The plaintiff objected to the question, the court sustained the objection, and the defendant excepted. It was further shown that the plaintiff was arrested, tried on the charge of obtaining money under false pretenses, and that this prosecution was commenced by the defendant, and that upon the hearing of the cause the plaintiff was discharged.

The defendant introduced as a witness one M. E. Milligan, who testified that he was an attorney, and had practiced law for 13 years, and that, upon the statement of all the facts relative to the dealings between the plaintiff and the defendant, he advised the defendant that the plaintiff was guilty of obtaining goods by false pretenses, and that thereupon the affidavit and warrant for arrest of the plaintiff were made out by the defendant.

Upon the introduction of the defendant as a witness in his own behalf, he testified to the facts relative to the transactions had between him and the plaintiff, and that...