Roddy v. Finnegan

Stewart, J., delivered tlie opinion of tlie Court. Owen Finnegan sued Michael Roddy a police officer of Baltimore, in trespass vi et armis, for assault and battery. Roddy undertook to justify his acts as done in discharge of his official duty. One Curran had sold a wagon load of hay to Finnegan, and it had heen driven by a colored man to the street in front of Finnegan’s stable for delivery.

Finnegan, Curran and the driver being there, Finnegan gave directions to put the hay in a window, opening into his stable-loft, and the team was driven hy the colored man, Curran’s driver, on the pavement to the window where the hay was being delivered from the wagon to the employees of Finnegan in the loft, when Roddy came up and made enquiry why the wagon and team were on the pavement in violation of' the Ordinance of the City. The Ordinance makes a party offending by driving on the pavement, liable to a fine. Finnegan having given direction as to the delivery of the hay, but Curran’s teamster having driven on the pavement, some question was .made on the trial below, as to Finnegan’s responsibility. Finnegan appearing as a witness for himself, gave his version of the occurrence, and when upon cross-examination had stated, “that he told Curran to put the hay in-at the window, and that a couple of colored men were employed by him -to put the hay in the counsel 'for Roddy proposed to ask him the following question : “When you pointed out to the witness Curran, the window through which you wished the hay put into the stable, and told him to put it in at that window) did you or did you not intend that the wagon and horses should be driven on the pavement, for the purpose of putting in the hay? ” Objection being made to the question, it was ruled to be inadmissible.

This is the ground of the first exception. ⁵⁰¹ If there was no other way in which the wagon could be got to the window except over the pavement, the conclusive inference to be deduced by Curran or his driver, from the order would be that Finnegan so intended; but no matter what he intended, the order was incapable of conferring authority upon Curran to violate the Ordinance. It is against the policy of the law to permit a party to authorize another to do an unlawful act; such authority can impose neither duty nor obligation as to either, but may involve both in punishment. Story on Agency, sec. 11. If the order of Finnegan in its inception was of unlawful tendency, and was carried into effect by Curran in the violation of the Ordinance ; both Finnegan, the author, and Curran, who executed it, were offenders.

Assuming the order to have been of doubtful character, it was competent to prove by Finnegan that when he gave it, he intended or contemplated a violation of the Ordinance, by its execution through Curran ; or that it was to be carried into effect non obstante the Ordinance ; for the purpose of showing his illegal complicity with Curran, in the transaction ; or that such was not his intention, as the case might be. That the order in reference to any legal responsibility for its character, depended upon its design, legal or otherwise, there can be no doubt. If intended for mischief, and such was its result, the legal and logical responsibility therefor to that extent, attached to its author. |( The enquiry into the intention of Finnegan is relevant to a proper comprehension of the nature and import of the order. If he is reliable he can give bettor testimony than inferential.

In criminal cases the guilty intention of a party committing an illegal act is implied from his conduct; and he is not permitted upon principles of public policy to give evidence of a different intention, although he may rebutt the same by other evidence. In fact he is not ⁵⁰² allowed to be a witness in his own case. Upon the inference from his own acts alone, his conviction of the offence may be founded, but he may in truth be innocent. In such case for the reasons stated, under the rule of his exclusion, the conduct of the accused, from which his guilt has been inferred, is the best evidence.

In a civil proceeding growing out of an alleged criminal act of one of the parties, where he is allowed by law to testify, there is no such reason operating as in criminal cases to exclude his testimony, as to his intentions connected with the commission of an act by himself, or by another, under his direction. On the contrary, the policy is- to relieve the witness of restrictions growing out of his interest, and to allow fuller latitude in the discovery of truth. The witness ordinarily has the privilege of declining to answer a question, that might subject- him to criminal prosecution ; but this he can waive. It is the privilege of the witness not of the party.

Where he is both paidy, and witness for himself, he must be held on his cross-examination as waiving the privilege, as to any matter about which he has given testimony-in-chief. Having testified to a part of the transaction in which he was concerned, he is bound to state the whole. See Roscoe Crim. Evi., 149, note C. No difficulty therefore exists on account of this privilege, to exclude the question, nor was it interposed as an objection.

There was error in excluding the question in this exception. If objection had been made, it is questionable if the testimony proposed to be' rebutted, in the second exception, was admissible for the purpose of proving malice on the part of Roddy. If Finnegan and his employees had been frequently arrested by Roddy, that would not show malice without further proof that the arrests were without foundation. Repeated arrests by an officer would not, per se. show malice. ⁵⁰³ A multiplicity of cases against Finnegan would only show he was a persistent offender, and sharp vigilance on the part of the officer.

No testimony had been offered by Finnegan which required to be rebutted. The testimony proposed as rebutting, was,