50 Ga. App. 553 | Ga. Ct. App. | 1935
Plaintiff instituted suit for damages, predicated on the alleged malicious prosecution by the defendants of a criminal prosecution against her. Plaintiff alleged that the defendants 'charged and prosecuted her for certain penal offenses against the laws of this State, to wit violations of sections 95, 102 and 781 of the Penal Code (1910). No allegations were made as to any warrant or accusation having been sworn out for such alleged crimes.
No evidence was introduced as to any warrant for or prosecution by the defendants of the plaintiff for a violation of any criminal statute of this State. The evidence shows that plaintiff was given a summons to appear at police court in the city of Atlanta, but the summons is not in evidence, nor is there any evidence as to its contents. It appears from the card of dismissal by the court that the charge against plaintiff was “D C,” and there was no explanation in the record of the meaning of “D C,” but if we assume that these letters mean disorderly conduct, there is still no prosecution for a crime. Disorderly conduct is not a violation of the penal laws of this State. If disorderly conduct is a crime against the city of Atlanta, it would appear from a municipal ordinance, but no ordinance to this effect is contained in the record. This court can not taire judicial cognizance of a city ordinance, and therefore is unable from the record in this case to determine whether there was a prosecution of the plaintiff of a criminal offense or not. This is true although the evidence shows that the plaintiff appeared before the recorder, and the defendants, Paree and Peeves, charged that she threw water upon bread of the Highland Bakery Inc. If such conduct was disorderly conduct, it does not appear. The recorder dismissed the case against plaintiff.
The fundamental basis of an action for damages on account of the malicious prosecution by the defendants of a criminal charge is that such defendants charged and prosecuted the plaintiff with a penal offense against the laws of this State. “A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, gives him a cause of action.” Civil Code (1910), § 4439. It is also essential that
Judgment affirmed.