Thе complaint is in Code form for malicious prosecution. Code, vol. 4, p. 506, Eorm 20. It .alleges the arrest of plaintiff under warrant on a charge of selling or removing personal property with the purpose to hinder, delay, or defraud the holder of a lawful claim thereto by virtue of a lien created by law, etc. Code, § 4925.
The warrant under which plaintiff was arrested recited, “An indictment having been found * * * for the offense of selling property covered by a lien or claim,” and commanded his arrest to answer such indictment in the circuit court, etc.
It is insisted this warrant was void, in that it described no offense against the lаw; that the warrant being void rather than defective or irregular, the remedy is in trespass for false imprisonment, and not in case for malicious proseсution.
We are not disposed to enter upon an inquiry whether this warrant was void in the sense that an officer would not be protected in its execution. This subjеct was considered and decisions reviewed in the recent case of Phillips v. Morrow,
Here the warrant was issued by thе clerk upon the return into court of a valid indictment found under Code, § 4925. It does not appear that the prosecutor, defendant here, in any way dirеcted or influenced the clerk in issuing a void warrant, nor that, with knowledge of fatal defects therein, if such there be, he participated in any trespass upon the person of plaintiff.
In such case there is no false imprisonment chargeable to him who has procured a valid indictment. Oates v. Bulloсk,
Malicious prosecution is the putting of the processes of law in. operation maliciously and without px*obable caxxse, leading on in due course to the arrest of the victim.
A valid indictment found, a warrant ox-order to arrest upon such indictment issxxed by the proper officer, and followed by thе arrest of the accused, brings him within the jurisdiction of the court for trial. ' Under our system a habeas corpus proceeding would be at once followed by a proper capias, and the holding of the accused for trial. It would not effect his discharge. Knox v. State,
In this situation the accused need not and should not stop to inquire whether he has legal cause to resist arrest for want of a valid warrant.
A due submission to lawful authority suggests the course taken here, the giving of bail and coming into court, thus submitting his person to valid judicial proceedings there pexxding.
If these proceedings have been instituted as the rеsult of malice and without probable cause, the wrongdoer is not relieved because some other has committed another wrong in effecting thе arrest contemplated. The arrest and consequent injury are the result of and in direct causal connection with the wrongful px-osecution. The remedy as against the prosecutor is malicioxxs prosecution, not false imprisonment. Strain v. Irwin,
Plaintiff, Baird, was a tenant of defendant, Morgan. The cottоn, the disposition of which led to the prosecution, was grown in Etowah county. It was hauled to defendant’s gin in Albertville in Marshall county. When ginned it was stored in defendаnt’s warehouse in Albex-tville. Mr. Hooper, a banker, held several mortgages on the cotton, some executed by both Baird and Morgan, and some by Baird alone. The warehouse'receipts or tickets were turned over to Mr. Hooper. Evidence tends to show this was by common consent of all pаrties. In the following spring the cotton was sold. It appears Baird and Hooper co-operated in making the sale, and at Hooper’s instanсe the entire proceeds were turned over to him as mortgagee and holder *228 of the warehouse receipts. These were delivered to the purchaser Alford, who then demanded and finally obtained the cotton from defendant’s warehouse.
Later Baird was indicted in Etowah county, was arrested, gave bail, and attended court. Upon learning the alleged sale was made in Marshall county, the prosecuting counsel caused the cаse to be nol. prossed.
There is evidence fully warranting a finding that Mr. Morgan went to Etowah county and actively instigated the prosecution. Some evidеnce tended to show he purposely did so to avoid an issue in Marshall county courts.
Whether Hooper, furnished with the insignia of ownership as well as the lеgal title to the cotton, was authorized to sell it on the open market and receive the proceeds, was a jury question.
Probable causе to believe that Baird had the intent to defraud his landlord by applying the residue of the proceeds to his individual mortgages to Hooper, leaving rent unрaid, was also a jury question. In the absence of agreement of the landlord to so apply it, the rent lien attached to the proceeds, аnd a right of action for money had and received arose.
Without further details, we are fully convinced the issues of malice and want of probablе cause were properly submitted to the jury, and their finding of fact should not be disturbed. American Surety Co. v. Pryor,
The decision, page 179 (
Suppression of testimony may consist in intentionally withholding facts known to the prosecutor as a witness before the grand jury, the disclosure of only such fаcts as tend to support the charge, or the furnishing of witnesses having knowledge of only such facts as tend to criminate, purposely avoiding a full and fair invеstigation.
The evidence made no case for justification on legal advice upon a full disclosure of all - the facts known to the proseсutor.
A grand jury docket kept, certified, and x’eturned into court pursuant to Code, § 8678, is by express terms made part of the records of the court. A transcriрt certified by the custodian is admissible as other records.
In this and most other instances of objections to evidence, no grounds of objection are shown. A mere recital that “defendant objected, the court overruled same, and defendant excepted,” brings up nothing for review. The transcript of the Marshall county grand jury docket, after striking out “no bill” by action of the court, was favoi-able to defendant.
If the docket as shown by the transcript in evidеnce contained matter not properly appearing on such docket, it was -merely cumulative of other evidence not in dispute. The objection was addressed to the whole.
Evidence tending to show that after the case was nol. prossed in Etowah county the prosecutor sought an indictment in Marshall couixty, while somewhat remote, may have shed some light on the issue of malice vel non.
If there was error in admitting the statement of the sоlicitor, Silvey, that defendant when a witness before the Etowah grand jury claiixxed no mileagp because such statement was secondary evidence of the contents of the docket, such error was cured by introduction of the transcript of the docket.
We find no reversible error in matters presented in ax'gument.
Affirmed.