Watson v. Cain
54 So. 610
Ala.
1911
Check Treatment
SOMERVILLE, J.

This is an action of malicious prosecution, based upon a complaint which follows in *155its general averments the form prescribed by the Code. The bill of exceptions shows that some of the evidence introduced at the trial in the court below tended to show an absence of belief in the guilt of the plaintiff on the part of the defendant at the time he instigated the prosecution complained of.

The assignments of error are predicated upon the refusal of the trial court to give charges 1 and 4 at the request of the plaintiff, and.the giving of charges 1, 10, 13, and 15 at the request of the defendant. The single vital question presented for our determination is whether or not the criminal prosecution here complained of was founded upon probable cause, if the prosecutor did not at the time of its institution believe in the guilt of the defendant, although he was informed, or had knowledge, of facts sufficient in themselves to warrant a reasonable man in the belief that the accused was guilty.'' The rulings of the court complained of by the appellant'withdrew from the jury any consideration of this feature, and instructed them that the prosecutor’s knowledge of such facts, without any belief on his part in the guilt of the accused, would require a verdict at their hands for the defendant.

There can be no doubt but that, as respects' these charges, the action of the trial court was erroneous. The necessity of the prosecutor’s belief in the guilt of the accused, in addition to his knowledge of facts which may reasonably warrant such belief, has been too often asserted by this court to be now a subject of controversy. —McLeod v. McLeod, 75 Ala. 484, 486; Steed v. Knowles, 79 Ala. 446; Southern Car & Foundry Co. v. Adams 131 Ala. 147, 32 South. 503; Sloss-Sheffield Co. v. O’Neal, 169 Ala. 52 South. 953. Indeed, the principle is a fundamental one, and of universal recognition. — 1 Hilliard on Torts, 474; 1 Cooley on Torts (3d Ed.) 327, 328; 1 *156Jag. on Torts, 616; 1 Street’s Foundations of Legal Liability, 330; 26 Oyc. 29, 30; 2 Addison on Torts (Wood’s Ed.) § 854.

In its rulings upon this question the trial court was no doubt misled by an expression found in the opinion of T. N. McClellan, J., in the case of Lunsford v. Dietrich, 93 Ala. 565, 9 South. 308, 30 Am. St. Rep. 79. In discussing two charges refused by the trial court, one of which charges asserted that the mere honest belief that the accused was guilty was in itself a. complete dedense, and the other that there was probable cause if the prosecutor honestly believed in the guilt, it was there said: “And in deciding upon its existence (i. e., probable cause) the prosecutor’s belief in the guilt or innocence of the party cannot be considered.” Standing apart from its context, and without any reference to the facts and questions to which the remark was applied, the language quoted might be of ambiguous import. But the court was simply stating, as the language next following shows, that the honest belief of the prosecutor, without the predicate of rational grounds therefor, could not be .considered; and this for the obvious reason that, thus presented, such belief was immaterial.

It is insisted for the appellee that the assignments of error are formally defective in not stating the names of all the parties. This claim is not supported by the record, and in any event, under the simple practice prevailing in this court, it is sufficient to write the assignments upon the transcript, and the formalities of a summons and complaint are wholly unnecessary. Nor is it necessary, as suggested, that such assignments as these should include an exception to the judgment rendered below.

It is also insisted for the appellee, that, even if the trial court erred as shown, it -was error without injury *157to the appellant, because of a variance between the allegations of the complaint and the proof; the complaint containing the statutory averment that the charge of robbery had been “judically investigtad,” and the proof being that the only judicial action thereon ivas the entry of a nolle prosequi, by which the prosecution ivas ended. A judicial investigation is, of course, the usual sequel to a criminal .proceeding, and the inclusion of this allegation in the Code form of complaint was no doubt intended merely as an adaptation of the form to the most usual state of the case. As held in So. Car & Foundry Co. v. Adams, 131 Ala. 147, 32 South. 503, such an allegation is not necessary to the statement of a cause of action. The complaint in the present case alleges that the “prosecution was ended and plaintiff discharged.” This being the case, the fact of previous judicial investigation becomes Avholly irrelevant as far as this aspect of the case is concerned. The allegation of such a fact is mere surplusage, because it does not describe anything that is material to the plaintiff’s right to maintain his action, nor does it limit the quo modo of the termination of the prosecution.—Gilmer v. Wallace, 75 Ala. 220, 222; Peck v. Ashurst, 108 Ala. 429, 438, 19 South. 781. Hence the doctrine of variance has no application. Moreover, the theory of variance can have no standing here, even if it were otherAvise meritorious, since it does not appear that objection was made in the court beloAV to the alleged variant proof, nor-that any charge Avas requested or given thereon. —Peek v. Ashurst, 108 Ala. 429, 439, 19 South. 781.

In what Ave have said above, we are not to be understood as indorsing the vieAV that “judicially investigated,” as used in the Code form of complaint, necessarily imports a trial on the merits, folloAved by a judgment of acquittal. As to this we noAv express no opinion.

*158For the errors above pointed out, the judgment must be reversed.

Reversed and remanded.

Dowdell, C. J., and Anderson and Sayre, JJ., concur.