Brackin v. Reynolds

• Decision Date: 14 March 1940
• Docket Number: 4 Div. 133.
• Citation: 194 So. 876,239 Ala. 419
• Parties: BRACKIN v. REYNOLDS.
• Court: Alabama Supreme Court

194 So. 876

239 Ala. 419

BRACKIN v. REYNOLDS.

4 Div. 133.

Supreme Court of Alabama

March 14, 1940

Rehearing Denied April 11, 1940.

Appeal from Circuit Court, Henry County; D. C. Halstead, Judge.

Action for malicious prosecution by Ludie Brackin against Fred Reynolds. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Transferred from Court of Appeals, under Code 1923, § 7326.

W. L Lee and Alto V. Lee, III, both of Dothan, for appellant.

G. D Halstead, of Headland, for appellee.

KNIGHT Justice.

Suit to recover damages for malicious prosecution.

Upon conclusion of the evidence the court, at the request of defendant, gave the general affirmative charge in his behalf. From a verdict for defendant, and judgment thereon, the plaintiff brings this appeal.

In actions for malicious prosecutions the burden is on the plaintiff to show want of probable cause. And this court seems to be committed to the proposition that the acquittal on final trial of one accused of crime does not tend to show a want of probable cause for believing him guilty of the offense charged. Standard Oil Co. v. Davis, 208 Ala 565, 94 So. 754; Stouts Mountain Coal Co. v. Grubb, 217 Ala. 274, 116 So. 156. Of course, if the defendant knew at the time he began the prosecution, of the innocence of the accused, or that no crime had been committed, then he could not have had probable cause for believing the accused guilty of the crime, and in such cases evidence of such knowledge would be competent and admissible against the defendant. McMullen et al. v. Daniel, 229 Ala. 194, 155 So. 687; Gulsby v. Louisville & N. R. Co., 167 Ala. 122, 52 So. 392; Sims v. Kent, 221 Ala. 589, 130 So. 213; Parisian Co. v. Williams, 203 Ala. 378, 83 So. 122; American Surety Co. v. Pryor, 211 Ala. 114, 99 So. 636.

It is also well established by the decisions of this court that, if the facts are without dispute, probable cause is a question of law for the court. McMullen et al. v. Daniel, supra; Molton Realty Co. v. Murchison, 212 Ala. 561, 103 So. 651; American Railway Express Co. v. Summers, 208 Ala. 531, 94 So. 737.

The plaintiff offered in evidence on the trial of this cause, as tending to show want of probable cause, only the judgment of the county court acquitting her of the offense of larceny charged against her in the affidavit made before the county judge by the defendant, and upon which the warrant was issued for her arrest, and her trial had. Then, after making proof of facts tending to show ill feeling against her by the defendant, the plaintiff rested her case.

Had the defendant at that time rested his case also, he would probably have been entitled to the general charge under the authorities above cited, but the defendant proceeded to offer testimony tending to show that he had, in fact, probable cause for believing that the offense of petit larceny had been committed, and that the accused, plaintiff, in this case, was guilty of the offense. However, on the examination of C. W. McDaniel this witness testified that he had "divided corn and peas and everything else I (he) had with Mrs. Brackin." And, then, in response to the following question by the court, "Did you tell Mr. Reynolds that when he came over there that you told Mrs. Brackin she could get corn and peas out there?" this witness testified: "I told Mr. Reynolds I gave Mrs. Brackin peas and a mess of 'roast-nears' and she got peas right when she wanted them but I didn't send no one over...