The opinion
On Rehearing.
[3] The defendant’s second plea can be sustained on no other theory than that the judgment of conviction in the inferior court operates as an estoppel against plaintiff to controvert the existence of probable cause' — in other words, the judgment is res adjudicata as to the existence of probable cause— and, if sustained, is a complete defense to this action. There are two elements essential to the application of the doctrine of estoppel by judgment absent in this case: The parties in the two cases are not the same. Holland v. Fairbanks, Morse & Co., 166 Ala. 198 , 51 South. 931 ; Richter v. Koster, 45 Ind. 440 ; 4 Mayf. Dig. p. 728, par. 124, and the judgment has been annulled and its efficacy as an estoppel has been destroyed by the appeal therefrom. See authorities cited in paragraph 1 of the original opinion; also, Mayf. Big. supra. In principle, there is no reason for saying that a judgment of conviction which has thus been annulled is res adjudicata as to one of the issues involved in that trial, and not as to all others, and there is no reason for saying that a judgment of conviction which has been subsequently annulled shall operate as an estoppel on the question of the existence of probable cause, and that the judgment of a committing magistrate invested with complete jurisdiction to determine the question is not. On the inquiry as to the guilt or innocence of the party accused on the final trial, the existence of probable cause is not a specific issue in the case, and is only involved to the extent that the greater includes the less, while in the preliminary inquiry before a committing magistrate the question of the existence of probable cause is the sole and determining issue in the case. The integrity of the courts in either case and the right of the prosecutor are fully protected by the rule which accords to such a judgment the evidentiary force of establishing prima facie the existence of probable cause.
While we are aware that there is great conflict of opinion on the subject as to whether such a judgment is good as an estoppel, and that probably the numerical weight of authority sustains the view that it is, we think the best considered cases and sound reason sustain the rule that such a judgment is only prima facie evidence of the existence of probable cause, and that it may be rebutted by any competent evidence tending to show the absence of probable cause. Sandlin v. Anders, 187 Ala. 473 , 65 South. 376 ; Skeffington v. Eylward, 97 Minn. 244 , 105 N. W. 638 , 114 Am. St. Rep. 711 ; MacDonald v. Sehroeder, 214 Pa. 411 , 63 Atl. 1024 , 6 L. R. A. (N. S.) 701 and note, 6 Ann. Cas. 506; Miller v. Runkle, 137 Iowa, 155 , 114 N. W. 611 ; Staton v. Mason, 119 App. Div. 437 , 104 N. Y. Supp. 155 ; Platt v. Bonsall, 136 App. Div. 397 , 120 N. Y. Supp. 983 .
The appellant’s contention that there Is no conflict in the evidence as to the issue presented by tire third plea, and that therefore it was error to refuse the affirmative charge’ requested by him, cannot be sustained. There was a conflict in the evidence as to whether the defendant disclosed to the attorney that Tork occupied under a written contract the premises on which the poison was alleged to have been put out. The witness Courtney testified on cross-examination:
“That the defendant had not shown him the contract under which A. E. Tork occupied the premises, and that the first he knew of their being a written contract was when it was offered in evidence in the inferior court by plaintiff’s attorney then defending her.”
[4, 5] The contract in question was entered into on the 20th of July, 1915, and by its terms was not to be performed within one year* from its date, and the fact that it was in writing was essential to its validity. Code 1907, § 4289. It was incumbent on the defendant in support of this plea to show that he made a full and fair statement of all the facts within his knowledge (Stewart v. Blair, 171 Ala. 147 , 54 South. 506 , Ann. Cas. 1913A, 925; 18 R. C. L. 45, par. 27), and the omission to state any material fact deprives him of the immunity otherwise obtainable by seeking advice of counsel (18 R. C. L. 47, par. 29; Davis v. McMillan, 142 Mich. 391 , 105 N. W. 862 , 3 L. R. A. [N. S.] 928, 113 Am. St. Rep. 585 , 7 Ann. Cas. 854).
Application overruled.