86 Ga. 238 | Ga. | 1890
This was an action, brought by the plaintiff in error against the defendant in error, for malicious arrest and false imprisonment. A verdict was had for the defendant in error; plaintiff in error made a motion for a new trial, which was refused by the court, and he excepted.
The first three grounds of the motion allege that the verdict was wrong. In looking at the facts in the case, we are satisfied that the verdict was right according to law and the evidence.
It is complaiued in the fourth ground that the court erred in refusing to give certain requests to charge to the effect that malice was presumed from the voluntary discontinuance of the prosecution, and that the burden of proof was on the defendant to show probable cause. We think, in an action of this sort, the burden is on the plaintiff to show malice and want of probable cause which induced the prosecution. It is true that a jury may presume malice where there is a total want of probable cause for the institution of the prosecution ; but where probable cause is shown, it would make no difference whether the defendant was induced to prosecute the case from motives of malice or not. In all actions of this kind there must appear both malice and a want of probable cause.
The fifth ground excepts to certain charges given by the court to the jury. It is alleged that the court improperly charged the jury as to the effect of advice of counsel as bearing upon the question of probable cause. We think, in looking at the charge of the court, that the law upon this subject was properly given in charge to the jury.
It is further, complained that the court erred iu its
The next ground of error insists that the question of probable cause should be adjudged by the status of the defendant at the time of the trial, and not when the prosecutor swore out the warrant; and that the charge of'the court in this respect was erroneous. We think, under the facts of this case, it is shown very clearly that, at the time the warrant was taken out and the plaintiff in error arrested, the defendant in error did have probable cause to believe that the plaintiff in error was guilty of the offence for which he was arrested. An action of this character is strictly guarded, and the circumstances under which it may be maintained are accurately stated. It is never encouraged except in plain cases. Were it otherwise, ill consequences would ensue to the public, for no one would willingly undertake to vindicate a breach of the public law, and to discharge his duty to society, with the prospect of an annoying suit staring him in the face. Ventress v. Rosser, 73 Ga. 541. A want of-such probable cause is a question for the jury under the direction of the court, and exists only when the circumstances are such as to satisfy a reasonable man that the accuser had no ground lor proceeding but his desire to injure the accused. Code, §2983. See Henderson v. Francis, 75 Ga. 180. “To make out probable cause, it is sufficient if.the plaintiff has reasonable grounds for belief at the time of acting. Statements made by third persons to the defendant may be introduced in order to show probable cause.” French
We think, in looking into the charge of the court, that the law governingthe case was fairly and correctly submitted to the jury, and that the charge fully covered the requests of counsel for the plaintiff in error, the refusal to give which is assigned as error.
Judgment affirmed.
