Sanders v. Davis
44 So. 979
Ala.
1907
Check Treatment
SIMPSON, J.

— This Avаs a suit brought by the appellant against the appellee. Originally the complaint contained tAvo counts, and the second count was subsequently amended. In that condition the case came before this court, and the court held that both counts, original and as amended, were in trespass for false imprisonment, and that there could be no recovery thereunder for a malicious prosecution. The defect pointed out by the court, as failing to make out a count for malicious prosecution, Avas that there Avas no allegation “of the issuance of process, properly describing it, and the plaintiff's arrest and imprisonment by virtue thereоf.” —Davis v. Sanders, 133 Ala. 275, 278, 32 Southt. 499. Fpon the second trial a third count was added by amendment, AAdiich still leaAres out any averment of process and arrest thereunder, but, in lieu thereof, alleges that the defendant caused “the plaintiff to be arrested under a charge made verbally to a policeman of the city of Birmingham, Alabama, on the charge of larceny, AAdiich charge, before the commencement of this action, *380has been judicially investigated by the police court of Birmingham, and said prosecution ended and the plaintiff discharged.” It is insisted by the appellee that the third count is still a count in trespass for false imprisonment, and not in case for malicious prosеcution, because it does not allege that the plaintiff was arrested under process.

It is true that the case of Davis v. Sanders, supra, and others, hold that the absence of an allegation of the issuance of process is fatal to a сount for malicious prosecution. — Holly v. Carson, 39 Ala. 345. The reason. Avhich underlies these decisions is that, in order to constitute malicious prosecution, it is necessary to show that the party was arrested under regular valid judicial proceedings, by virtuе of which he might have been legally convicted of the offense charged. The averments must shoAV, first, a judicial proceeding; second, that it was instigated by the defendant; third, want of probable cause; fourth, malice; fifth, the tеrmination of the judicial proceeding favorably to the plaintiff; and; sixth, the damage. — 13 Ency. Pl. & Pr. 427. Section 5211 of the Code of 1896 authorizes an officer (including a policeman) to arrest, without a warrant, for a public offense committed Avithin his presence or a breach of the peace threatened in his presence, “or when a felony has been committed, though not in his presence, by the person arrested, or when a felony hаs been committed, and he has reasonable cause to ‍‌​​‌​​‌‌‌‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​‌‌‌​‌‌​‌​​‍believe that the person arrested committed it, or when he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony has not, in fact, been committed, or on a charge made, upon reasonable cause, that the person arrested has committed a felony.” While it may not be accurate, in view of the above statute, to *381say that in every case it is necessary, in order to count on malicious prosecution, to aver the issuance of process and arrest thereundеr, yet the averments must be such as to show a legal arrest as the commencement of a valid judicial proceeding.

In a case of action for false imprisonment, the defendant interposed a special plea, setting up an arrest by a policeman “having reasonable cause to believe that plaintiff was guilty.” In support of the plea the argument was made that the arrest, having been made by the officer on rеasonable cause, was a lawful arrest, and, the defendant having caused it, his liability was for malicious prosecution, and not for false imprisonment. This court said that the vice of the argument ivas in supposing that the rightfulness or lаwfulness of the officer’s act could be predicated upon the command or direction of another procuring him to do the act, and that “if he acts by the command or direction of another, and arrests and imрrisons one upon a charge of a felony which has not been committed, or, if committed, the party commanding the arrest had no reasonable cause to believe was committed by the person arrested, thе act is unlawful on the part of the officer himself, as well as the person who procured it.” — Rich v. McInerny, 103 Ala. 345, 355, 356, 15 South. 663, 43 Am. St. Rep. 32. While the éxpressions of the court in the foregoing case are not entirely clear to the writer, yet they seem to presеnt the dilemma that if the officer acted on the command or direction of another, who had no “reasonable cause,” then the arrest was illegal, and consequently false imprisonment was the remedy; while, on the оther hand, if the party upon Avhose command or direction he acted had “reasonable cause,” then the arrest would be legal and valid, so that false imprisonment would not lie, nor could the party causing the ar*382rest be held for malicious prosecution, because he had “probable cause.” If this be the reasoning of the court, then the result is that a party instigating an arrest without a warrant can be made liable only in an action of false imprisonment, and not in an action of malicious prosecution.

The court, in that case, was dealing only with an arrest made on the verbal direction of the defendant, and the defendant was seeking to justify the аrrest on the ground that the policeman had reasonable cause to believe that the plaintiff was guilty. . It is probable that, under the last clause of the statute, if a regular formal charge should be made by affidavit, stating thаt the affiant has reasonable cause to believe, etc., the fact of his really having, or not, reasonable cause, would not be the test of the legality of the arrest. This court has held that, where a warrant of аrrest was issued by a justice of the' peace in one county, and sent to another, where the arrest was made without the indorsement by a justice of that county, as required by statute, although it was without force as a warrant in the latter county, yet it was sufficient, as a “fact that a charge had been made on reasonable1 cause,” to make the arrest valid.— Ex parte Smotherman, 140 Ala. 168, 171, 87 South. 376. But, however that may be, a count for malicious prosecution should at leаst aver that the defendant had made such a formal charge as would have justified the officer to make ‍‌​​‌​​‌‌‌‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​‌‌‌​‌‌​‌​​‍the arrest, based on that charge, and it is not sufficient to aver merely that the defendant caused the plaintiff tо be arrested under a charge made verbally to a policeman.

This extraordinary power given to officers, being in derogation of the common law, must be strictly construed. It results that the third count, which was added to the сomplaint in this case, was still a count for *383-false imprisonment, and not for malicious prosecution. If the offense had been below the grade of felony, there would have been no authority under the statute to arrest without a warrant. — Mitchell v. Gambill, 140 Ala. 545, 554, 37 South. 402; Gambill v. Schmuck, 131 Ala. 321, 331, 31 South. 604. So, whether the charge in this case was grand or petit larceny, the result as to the legality or illegality of the arrest would be the same.

The ordinances of the city, which were introduced,, .have no bearing on this cаse, as the complaint does not aver an arrest under the circumstances therein provided for.

The cases on the subject of taking issue on an immaterial issue of fact, presented by a plea not demurred tо, have no application to this case. The first two counts were for false imprisonment, and, as shown, we hold that the third count, also, was for false imprisonment. The plea was simply the general issue to the entire complaint. The verdict and instructions will be referred to the complaint as it was, and not to what it may have been supposed to be. — Hazzard v. Purdom, 3 Porter. 43; Ex parte Pearce, 80 Ala. 195; Irion et al. v. Lewis, 56 Ala. 190; Mudge v. Treat, 57 Ala. 1.

There was no error in sustaining the objection by the defendant to the question to plaintiff, as a witnеss, as to where he lived ‍‌​​‌​​‌‌‌‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​‌‌‌​‌‌​‌​​‍and how long he had lived in Alabama. Even if that could be any evidence bearing on his character, his character was not in issue. — Davis v. Sanders, 133 Ala. 275, 275, 279, 32 South. 499. A tramp is entitled to the protection of the law, equally with a citizen.

Thе overruling of the objection to the question to the defendant, “Did you have any conversation with Judge Feagin with reference to this case?” if error, was with*384out injury, as the answer did not show what the conversation was.

The court did not err in overruling the objections to the questions to the defendant, as a witness, in regard to his seeing Henrietta Davis, and the answers thereto, as the answers did not disclose any fact which couJd injure the defendant.

The objectiоn to the reading of the former testimony of Lorena Davis and Officer McKnight, also the objection to the question to the defendant, “Were you before the grand jury?” etc., cannot be considered, as the court-will not be рut in error for overruling general objections to testimony, not specifying any grounds, unless the testimony is plainly inadmissible for any purpose. This is particularly true of secondary evidence. — 9 Ency. Ev. pp. 58, 62, 65, 78; Railway Co. v. Sweety 60 Ark. 550, 31 S. W. 571; People v. Lonie Foo, 112 Cal. 17, 44 Pac. 453; People v. Baird, 105 Cal. 126, 38 Pac. 633; Bates v. Morris, 101 Ala. 282,13 South. 138; Larkin v. Baty, 111 Ala. 303, 18 South. 666; Ladd v. State, 92 Ala. 58, 9 South. 401; K. C. M. & B. R. R. Co. v. Smith, 90 Ala. 25, 8 South. 43, 24 Am. St. Rep. 753.

There was no error in the giving оf charge 9, on request of the defendant. As bearing upon the question as to whether “probable cause” was material in the action for false ‍‌​​‌​​‌‌‌‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​‌‌‌​‌‌​‌​​‍imprisonment, this court has held that, under the form of complaint prescribed by our Code, the allegation of “malice and without probable cause” must be proved (Rich v. McInerny, 103 Ala. 345, 354, 15 South. 663 49 Am. St,. Rep. 32), and in another case, in which there Avas no averment of Avant of probable cause, but there was an averment- оf malice, this court said that, while the motives are immaterial in arriving at the question of guilt or innocence for causing an arrest un*385der a void warrant, yet they may he considered in measuring the damages. — Oates v. Bullock, 136 Ala. 537, 544, 33 South. 835, 96 Am. St. Rep. 38. This court has also held that the want оf probable cause cannot be inferred from the failure or abandonment of the prosecution. — McLeod v. McLeod, 75 Ala. 483, 486.

In an action for false imprisonment it is not material whether the prosecution has been judicially investigated and ended. Hence the most that can be said of charge 10 is that it was misleading, and the court cannot be placed in error for giving it.

There was no error in giving charge 12, requested by the defendant. Unless the cause which led the defеndant to believe that the plaintiff had committed the larceny Avas “reasonable,” it could not be a “probable” cause. A reasonable cause is simply a rational or sensible cause as contradistinguished from a fancied cause Which has no reason to support it, Avhile “probable” is defined as “having more evidence than the contrary.” This court has held that a probability of innocence is the equivalent of a reasonable doubt of guilt. — Bones v. State, 117 Ala. 138, 23 South. 138, Whitaker v. State, 106 Ala. 30, 17 South. 456; Bain v. State, 74 Ala. 38. It has, also in a false imprisonment case, held correct a charge which asserted that ‍‌​​‌​​‌‌‌‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​‌‌‌​‌‌​‌​​‍a probable cause meant a reasonable ground of suspicion, supported by circumstances, etc. — Rich v. McInerny, 103 Ala. 345, 357, 15 South. 663, 49 Am. St. Rep. 32.

' Charge 16, given at the request of the defendant, asserts a correct principle of Iuav.

There was no reversible error in the giving of charge 21, requested by the defendant. — Childs v. State, 76 Ala. 93 95; Jordan v. State, 81 Ala. 20, 31, 1 South. 577; A. *386G. S. R. R. Co. v. Frazier, 93 Ala. 46, 51, 9 South. 303, 30 Am. St. Rep. 28. 2 Elliott on Ev. § 956.

The judgment of the court is affirmed.

Tyson, C. J., and Dowdell and Denson, JJ., concur.