| Ga. | Aug 15, 1860
By the Court. —
delivering the opinion.
Was the Court below right' in refusing the plaintiff a new trial ?
1. We find no error in the admission by the Court of evidence of a threat made by plaintiff, to destroy the schoolhouse, which, after the threat, was really burned, even though knowledge of that threat was not brought home to defendant before he commenced the prosecution. It was an important fact in the case, which might have come to defendant’s knowledge before he commenced the prosecution, though not so proven. It was a fact, tending to show probable cause, though its effect was certainly weakened, in that view, by defendant’s failure to prove at what time he acquired knowledge of the fact. It was, moreover, a circumstance deserving consideration of the jury, in determining the important question, whether plaintiff did burn the school-house, and was, we think, properly submitted to them.
2. Defendant’s counsel having argued that plaintiff’s character was bad, and this argument being likely to prejudice his case before the jury, he was entitled tp the legal presumption that, in the absence of evidence proving the contrary, his character was good; and it was error in the-Court to refuse to charge, on request, that the law did so presume.
3. On the trial, the plaintiff proved an alibi, by three or four unimpeached witnesses, and further, that defendant was informed of the existence of such proof before he commenced the prosecution. Defendant declared his intention fi> commit plaintiff, right or wrong — caused him to be arrested, thereby restraining his personal liberty — on the preliminary examination, objected to plaintiff having time to procure additional evidence, and, finally, caused a bill, charging plaintiff with arson, to be preferred before the grand jury. That body, under an ex parte investigation; returned, “No bill, and a malicious prosecution.” We are decidedly of opinion, in view of all the evidence, that there was an absence of probable cause, malice on the part of the prosecutor, and
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, and a .new trial ordered, on the ground that the verdict of the jury is contrary to law and strongly and decidedly against the weight of evidence.