Thorpe v. Wray, 68 Ga. 359

Thorpe v. Wray

68 Ga. 359 | Ga. | 1882

Speer, Justice.

This was an action of trespass for false imprisonment, brought by the defendant in error against the plaintiff in error, in which a recovery was had in favor of the plaintiff below in the sum of seven hundred and fifty-five dollars. A motion was made for a new trial, which was refused, and that judgment is the error assigned.

It appears from the evidence, that Maud Wray sued out a warrant against Mary Thorpe “ to compel her to give bond to keep the peace.” That immediately after her arrest on said warrant, Mary Thorpe sued out a warrant against Maud Wray charging her with perjury in suing out the peace warrant; upon this warrant Maud Wray was arrested, and it was in consequence of her arrest and imprisonment under said warrant this action of trespass was filed;

1, 2. The first error assigned in the motion for new trial was error in the court refusing to non-suit the case.

The ground of the motion for non-suit was, “ it having been proved that the arrest and detention of the plaintiff was by virtue of a warrant, the action of trespass for false imprisonment, would not lie, but case was the remedy, and plaintiff had not shown any bad faith on the part of defendant.”

*367We agree with the court below, that the motion for non-suit should not have been allowed. The warrant under which this arrest of plaintiff below was had was defective and void.

There was no sufficient affidavit upon which it could issue. It did not appear to have been sworn to before any officer authorized to administer an oath, but was attested and signed by W. H. Woodhouse and the defendant below, Mary Thorpe. Neither the affidavit or warrant either literally or substantially complied with the form prescribed by law. Code, §4714-15; Constitution article 1, section I, par. XVI; 55 Ga., 380.

This warrant was not supported either by oath or affirmation, nor did it allege when or where the crime was committed. Code, §4714.

The v'arrant being void, the arrest and imprisonment were illegal, if made in bad faith. “ False imprisonment consists in the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty.” Code, §2990.

“ But, though the imprisonment be had under a warrant defective in form or void for want of jurisdiction, neither the party bona fide suing it out, nor the officer who in good faith executes the same, would be liable for false imprisonment ; but in such cases the good faith must be determined by the circumstances of each case.” Code, §2991. The conclusion, then, is irresistible, that if the party who sues out the warrant acts in bad faith, the detention is unlawful, and he is liable to an action. The question of good or bad faith being a question of fact for the jury, the court did not err in refusing to non-suit the case. Code, §4460; 52 Ga., 244; 50 Ib., 591.

The warrant being void the action of trepass for false imprisonment was properly brought. Code, §§2990-1, 4364; 3 Wait, 307; § 4, Ib., 319, §13.

3. The court having given in charge to the jury the principles above recognized, we do not think the verdict *368is either contrary to the charge or to law. Neither are we prepared to say the verdict found by the jury is excessive.

“The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.” Code, §2947; 10 Ga., 37; 20 Ib., 428; 23 Ib., 222; 42 Ib., 270.

The question of damages being one peculiarly for the jury, and the legal principles controlling the question being properly given in charge, we do not feel authorized to interfere with the verdict on this ground. Code, §§3066, 3067.

4. The newly discovered testimony would only be admissible with a view of impeaching the testimony of the plaintiff below, and is not favored or sufficient to set aside a verdict, especially when the newly discovered testimony is likewise merely cumulative in its character. 56 Ga., 403; Code, §3716.

5. We see no error in the court overruling the objection made to the testimony of plaintiff detailing the facts of her second arrest under the same warrant at defendant’s instance. It goes to illustrate the question of good faith on the part of the defendant below in having this arrest made in the first instance.

6. Neither was there error in the court refusing to compel the witness (the plaintiff) to answer “whether she had been an inmate of a house of prostitution, when she refused to do so on the ground that it would disgrace her.” Code, §3814.

The eighth ground of the motion is overruled for the same reason, that it is the privilege of the witness to decline to answer.

7. Neither was there error in allowing the witness to testify as to the reasons that impelled her to plead guilty to the charge of assault and battery. All the evidence on this subject had been brought out by the defendant below, to affect the character and credit of the plaintiff, *369and it was just she should be allowed to say why she had pleaded guilty to the charge, in reply to the testimony procured from her by the cross-examination of defendant’s counsel.

8. The testimony of the witness, Kaufman, who testified as to the circumstances attending the arrest and imprisonment of the plaintiff, with her efforts at procuring bail, etc., we think was admissible as part of the res gestcB. So, also, as to the testimony of other witnesses testifying to similar facts and occurrences.

9. Neither do we find any error as complained of in the 13th, 14th, 15th, 16th, 17th grounds of the motion.

10. As to the 18th, 19th, 20th, 21st and 22d grounds, all are of the same effect; the rulings of the court as to these grounds are not so authenticated by the judge below as to warrant us in considering them as they are presented in the motion. As to the admissibility of the evidence showing how the defendant treated her boarders, it seems it was first offered by the defendant and admitted without objection, and afterwards the court allowed evidence in rebuttal of this to disprove its truth. We do not think this was error, since the defendant tendered the issue as to her character of being a kind and considerate landlady, she has no cause tq complain if t’he issue was met by conflicting testimony. If she was seeking character and credit to maintain her defence by this testimony it was competent to rebut it. In looking carefully through this voluminous record, we find no such error of law as would justify us in interfering with a verdict that is sustained by the evidence, and which has met the approval of the judge who presided in the court below.

11. As to the point that the evidence does not show that the prosecution of this warrant for perjury against the defendant in error had finally ended and terminated, we do not see from the record that this question was made in the court below. But as it was insisted upon here, we say that we are not prepared to determine that there is *370not sufficient evidence in the record to show that the prosecution had ended. There was an appearance by the defendant before the magistrate for an investigation. The prosecutrix (plaintiff in error) was duly notified of the time and place, and failed to appear, and the magistrate, after hearing the statement of the defendant, dismissed the warrant. Moreover, we are inclined to think that the rule as requiring that the prosecution should be ended before the civil suit was maintainable, appiifes alone to suits for malicious prosecution and riot to suits for trespass. See Code, §2989.

Judgment affirmed.