Rutherford v. Dyer

• Decision Date: 17 April 1906
• Citation: 146 Ala. 665,40 So. 974
• Parties: RUTHERFORD v. DYER.
• Court: Alabama Supreme Court

40 So. 974

146 Ala. 665

RUTHERFORD v. DYER.

Supreme Court of Alabama

April 17, 1906

Appeal from Circuit Court, Cullman County; O. Kyle, Judge.

"To be officially reported."

Action by Susie Dyer, by her next friend, A. J. Dyer, against W. M Rutherford. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This was an action by appellee, as next friend of Susie Dyer against appellant, in malicious prosecution. The suit was commenced in justice court, and the cause appeared there on the docket as "A. J. Dyer v. W. M. Rutherford." Judgment was rendered against the defendant in the justice court, and taken by him by appeal to the circuit court, where a complaint was filed by A. J. Dyer, as next friend of Susie Dyer, against William Rutherford. On trial, after identification of the affidavit and warrant by the justice of the peace who issued them, it admitted in evidence over the objection of the defendant, who insisted that it was illegal immaterial, irrelevant testimony, and because the affidavit charged no offense against Susie Dyer. The warrant and affidavit were in words and figures as follows:

"State of Alabama, Cullman County. Justice Court. To Any Lawful Officer of Said State: Complaint on oath having been made before me that the offense of trespass after warning has been committed, and accusing Fanny A. Dyer and Susie Dyer thereof you are therefore commanded forthwith to arrest Fanny A. Dyer and Susie Dyer and bring them before me. Dated this 23rd day of July, 1903. [ [Signed] John Rehberg, Justice of the Peace.

"State of Alabama, Cullman County. Before me, John Rehberg, a justice of the peace of beat 18 in and for said county personally appeared W. M. Rutherford, who, being duly sworn, deposes and says that on the 22d day of July, 1903, in said county, the offense of trespass after warning, is guilty thereof, in the opinion of complainant committed, and that Fanny A. Dyer and Susie Dyer are guilty thereof. [ Signed] W. M. Rutherford.

"Sworn to and subscribed before me this, the 23rd, day of July, 1903. [ Signed] John Rehberg, Justice of the Peace."

It being admitted in open court by the attorneys representing plaintiff and defendant that the transcript of the proceedings might be used in lieu of the original entries as testimony, subject to other legal exceptions, the justice of the peace was shown what purported to be a transcript of the judgment in the case of State of Alabama v. Fanny A. Dyer and Susie Dyer, identified the same as a true and correct transcript of the judgment entry on the original docket, and the plaintiff thereupon offered in evidence said transcript, which is in words and figures as follows:

"The State of Alabama, Plaintiff, v. Fanny A. Dyer and Susie Dyer, Defendants. Defendants Dyer were brought before this court this 27th day of July, 1903, upon a writ of arrest for trespass after warning issued by this court on the 23d day of July, 1903, upon the complaint under oath of W. M. Rutherford. Defendants asked time to employ counsel, which was granted, and trial set for 10 o'clock a. m. July 30, 1903. In the absence of the bonded constable for precinct No. 18, this court appointed Bird Speakman to act in this case, and said Speakman made due service and return on said writ of arrest July 30, 1903. This cause coming on for hearing and the defendant being in open court, the state being represented by F. E. St. John and the defendant by W. T. L. Cofer, upon motion of said St. John to dismiss the case as to Susie Dyer, sufficient cause being shown to the court that defendant Susie Dyer, being a minor child about 13 years of age, and that said Susie Dyer acted under instructions of her mother, Fanney A. Dyer, the codefendant in this action, therefore it was ordered, adjudged, and decreed by this court that the prosecution as to Susie Dyer be dismissed, and that she go hence."

The defendant objected to this transcript because it does not show a judicial investigation of the charges against Susie Dyer and a judicial determination of the cause. At the conclusion of the testimony in the case, the defendant moved the court to exclude all the testimony on the ground that this was an action by A. J. Dyer personally, and the testimony given had reference to the arrest of and the prosecution of Susie Dyer. The court overruled the motion and the defendant excepted.

The plaintiff requested the following written charges: Charge 1: "The court charges the jury that a malicious act is whatever is wrongfully, vexatiously, and purposely done, is in law maliciously done." Charge 2: "The court charges the jury that, if they believe from the evidence in this case that there was not probable cause for the suing out of the prosecution against Susie Dyer, then the jury may infer malice from the want of probable cause on the part of the defendant." Charge 3: "The court charges the jury that, if they find the issue in this case in favor of the plaintiff, the form of their verdict should be as follows: 'We, the jury, find the issues in favor of the plaintiff and assess his damages at the sum of _______ dollars. _______, Foreman.' " The court gave each of these charges.

The defendant requested the court to give the following charges which were refused: Charge 1: "The court charges the jury that, if they believe the evidence in this case, they must find for the defendant." Charge 2: "The court charges the jury that they may look to the fact that defendant caused the prosecution to be dismissed against Susie Dyer as a circumstance tending to show that the defendant was not actuated by malice in causing the said Susie Dyer to be arrested; and, if the jury believe from the evidence that the defendant was not actuated by malice towards Susie Dyer in having her arrested, then their verdict must be for the defendant." Charge 3: "The court charges the jury that under the evidence in this case there was probable cause for the defendant having Susie Dyer arrested on the charge of trespass after warning." Charge 4: "The court charges the jury that...