Darnell v. Shirley
| Decision Date | 06 March 1924 |
| Docket Number | 15188. |
| Citation | 122 S.E. 252,31 Ga.App. 764 |
| Parties | DARNELL v. SHIRLEY. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In an action to recover damages for an alleged malicious criminal prosecution, the plaintiff carries the burden of proving, not only that such prosecution was maliciously carried on, but also that it was carried on without any probable cause. Civ Code 1910, § 4439; Joiner v. Ocean S. S. Co., 86 Ga 238, 12 S.E. 361; Thornton v. Story, 24 Ga.App. 503 (2), 101 S.E. 309.
The "malice" contemplated by law in an action for malicious prosecution is the same as in an action for malicious arrest, and "may consist in personal spite or in a general disregard of the right consideration of mankind directed by chance against the individual." Civ. Code 1910, § 4451; Waters v. Winn, 142 Ga. 138 (1), 82 S.E. 537, L.R.A. 1915A, 601, Ann.Cas. 1915D, 1248.
While want of probable cause is sometimes a circumstance from which malice may be inferred, yet this is so only in cases where there is a total want of such cause. Civ. Code 1910, § 4444. And where there is no evidence of malice, other than such inference as may be drawn from proof of the want of probable cause, and that proof shows some circumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for malicious prosecution to recover.
Want of probable cause is the gravamen of an action for malicious prosecution, and there can be no recovery by the plaintiff where there was any probable cause for the prosecution, even though it may appear that the prosecutor was actuated by improper motives. Seamans v. Hoge, 105 Ga. 159, 31 S.E. 156.
That want of probable cause which constitutes an essential ingredient of an action for malicious prosecution exists only "when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused." Civ. Code 1910, § 4440.
In determining whether or not there was a total want of probable cause for a criminal prosecution alleged to have been maliciously carried on, the question is not whether the accused was actually guilty of the offense with which he was so charged, but the real question is whether the prosecutor had reasonable cause so to believe; that is, whether the circumstances at the time of the prosecution were such as to create in the mind of the prosecutor a reasonable belief that there was probable cause for the prosecution. Hartshorn v. Smith, 104 Ga. 239, 30 S.E. 666.
The action of a magistrate in binding over the accused on a criminal warrant is prima facie, but not conclusive, evidence of probable cause for such prosecution. Lindsay v. West 6 Ga.App. 284 (2), 64 S.E. 1005.
(a) The return of an indictment by the grand jury investigating the alleged offense is likewise prima facie, but not conclusive evidence of the existence of such probable cause.
Proof that the accused was discharged and acquitted of the offense alleged in the bill of indictment, without a trial, and upon a second demand therefor, because of the inability of the state and the prosecutor to obtain the attendance of some of the witnesses relied upon to establish the charge, serves only to show that the prosecution terminated. Even a verdict of not guilty upon the indictment would not tend to show the want of probable cause for the prosecution, because, in a trial of the indictment, such a...
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