Elliott v. Caheen Bros., Inc., 6 Div. 980.

• Court: Supreme Court of Alabama
• Writing for the Court: BOULDIN, Justice.
• Citation: 153 So. 613,228 Ala. 432
• Parties: ELLIOTT v. CAHEEN BROS., Inc., et al.
• Docket Number: 6 Div. 980.
• Decision Date: 08 March 1934

153 So. 613

228 Ala. 432

ELLIOTT
v.
CAHEEN BROS., Inc., et al.

6 Div. 980.

Supreme Court of Alabama

March 8, 1934

Rehearing Denied April 5, 1934.

Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.

Action for malicious prosecution by Sarah Elliott against Caheen Bros., Inc. and William T. Wingo. From a judgment for defendants, plaintiff appeals.

Affirmed. [153 So. 614]

W. A. Denson, of Birmingham, for appellant.

Cabaniss & Johnston and L. D. Gardner, Jr., all of Birmingham, for appellees.

BOULDIN, Justice.

The cause was tried on counts for malicious prosecution. The trial court gave the affirmative charge, requested in writing, for defendants.

The prosecution was for violation of the Bad Check Law, which, as applicable to this case, reads: "Any person who * * * with intent to defraud shall * * * draw or utter * * * any check * * * upon any bank * * * knowing at the time of such * * * drawing, uttering * * * that the maker or drawer has not sufficient funds in or credit with such bank * * * for the payment of such check * * * although no express representation is made in reference thereto and shall obtain therefor any * * * merchandise * * * shall be guilty of a misdemeanor." Code, § 4159, as amended, Acts 1927, page 287.

In any prosecution under the above section, proof that payment was "refused by the drawee because of lack of funds or credit, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in or credit with such bank." Code, § 4160, as amended, Acts 1927, p. 287.

Without dispute, the plaintiff purchased merchandise from defendant Caheen Bros., Inc., and gave a check therefor on the First National Bank of Birmingham, payment of which was refused by said bank for insufficient funds, and the check returned to the payee. These facts were known to defendant Wingo, the duly authorized agent of the payee, who thereafter instituted the prosecution.

Facts which, under the law, constitute prima facie evidence of guilt, furnish probable cause for beginning a prosecution. This is too self-evident to need elaboration. Unless other facts or circumstances, known to the prosecutor, are sufficient to overcome this presumption, in the mind of a reasonably prudent and just man, the prosecution is supported by probable cause.

Appellant relies mainly on the following facts in this connection:

Plaintiff had given two checks for merchandise, one for $8 and one for $3.50, dated December 15th and 17th, both of which were refused payment for insufficient funds. Later, according to plaintiff's version, she went to the defendant's store, paid and took up the $8 check, and was advised the other check was then in the hands of a collection agency, and it was agreed the check would be recalled, and plaintiff would take it up on [153 So. 615] being notified it was in hand, and that she was never so notified until after prosecution began, based on this $3.50 check.

Just what date the $8 check was taken up is not clear, but admittedly after receipt of a letter of date December 27th, notifying plaintiff the two checks had been returned for insufficient funds, and they would be again deposited on the 28th, with request that plaintiff see they were paid when presented at the bank.

The version of Mr....