Nolen v. Jones

Nov 15, 1917
5 Div. 674.
Versions:76 So. 935
200 Ala. 577
1917 Ala. LEXIS 549
ANDERSON; C. J.

[1-3] The first count of the complaint is for false imprisonment, while the second one is for a malicious prosecution. The defendant pleaded justification under legal process as to the first count, and which, if established, was a complete defense to said count for false imprisonment. Leib v. Shelby Co., 97 Ala. 626, 12 South. 67; Sou. Car Co. v. Adams, 131 Ala. 157, 32 South. 503; Emerson v. Lowe Mfg. Co., 159 Ala. 350, 49 South. 69; Pell City Mfg. Co. v. Swearingen, 156 Ala. 397, 47 South. 272. The proof shows that the plaintiff was arrested under a warrant issued by a justice of the peace which, together with the affidavit upon which it was issued, was introduced, and the trial court, in refusing *578 the general charge for the defendant, as to the first count evidently proceeded upon the idea that the warrant was void, and in this we think the said court fell into error. The affidavit and warrant are far from perfect, and would be insufficient as an indictment, hut the same particularity is not required in prosecutions of this character before a magistrate, and it is sufficient to designate the offense, either in the complaint or warrant, by name only, or by words from which it may be inferred. Brown’s Case, 63 Ala. 97; Adams v. Coe, 123 Ala. 664, 26 South. 652. The warrant charges the offense of “buying mortgaged property,” and can be reasonably interpreted as charging a violation of section 7342 of the Code of 1907, the caption of which is: “Removing, Selling or Buying Property to Which Others Have Claim.”

As above noted, the defendant was entitled to the general charge as to the first count, and as the second count should have been submitted to the jury, the trial court erred in peremptorily instructing that the plaintiff was entitled to recover.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

McClellan, sayre, and garjdnbr, JJ., concur.