Green v. Norton

Citation172 So. 634,233 Ala. 489
Decision Date18 February 1937
Docket Number7 Div. 399
PartiesGREEN v. NORTON.
CourtAlabama Supreme Court

Appeal from Circuit Court, Calhoun County; Lamar Field, Judge.

Suit for malicious prosecution by Mark Green, a minor suing by his next friend and father, Henry Green, against W.A. Norton. From a judgment for defendant, plaintiff appeals.

Affirmed.

Harvey A. Emerson, of Anniston, for appellant.

Merrill Jones & Whiteside, of Anniston, for appellee.

GARDNER Justice.

There was verdict and judgment for defendant in this action of malicious prosecution, and plaintiff appeals.

The assignments of error relate to a few questions as to evidence, and the refusal of charge 1, requested by the plaintiff. Under the view here entertained, they need no separate treatment for the reason the conclusion has been reached that defendant was, upon the undisputed proof, due to be given in his behalf the affirmative charge duly requested. Approvingly quoted in Molton Realty Co. v Murchison, 212 Ala. 561, 103 So. 651, 652, is the following from 2 Thompson's Trials: "No rule of law is better settled, both in England and in America, *** than that in civil actions for damages for the malicious prosecution of a criminal action the question of probable cause is a question of law, which the judge must decide upon established or conceded facts, and which it is error for him to submit to the jury." See, also, United States Cast Iron Pipe & Foundry Co. v. Henderson, 22 Ala.App 448, 116 So. 915, 917; McMullen v. Daniel, 229 Ala 194, 155 So. 687; American Rwy. Express Co. v. Summers, 208 Ala. 531, 94 So. 737; Elliott v. Caheen Bros., 228 Ala. 432, 153 So. 613.

And in Gulsby v. Louisville and Nashville R.R. Co., 167 Ala. 122, 52 So. 392, 395, are the following observations here pertinent: "Appellant insists that the evidence was not sufficient to authorize the submission of probable cause vel non to the jury. The court below took the opposite view and so submitted the issue. Whether the plaintiff was in fact guilty of the offense is not a controlling inquiry on this issue. McLeod v. McLeod, supra . The question is, Were the known (to the prosecution) facts and circumstances sufficient, regardless of the unfavorable (to the state) event of the prosecution, to justify a reasonable and cautious man in believing the plaintiff guilty? The consequence necessarily is that a want of knowledge of sufficient evidence to convict the accused of the offense charged is not the test of probable cause vel non. And it is necessarily a corollary that the facts and circumstances known to the prosecution, and on which, under the doctrine of probable cause, he was authorized to act, need not be legally admissible evidence on the trial of the accused."

And in Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308, 310, 30 Am.St.Rep. 79, probable cause was defined as follows: "A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged."

Bearing in mind these well-settled principles, we give them application to the facts here presented, omitting any detailed discussion. On Friday night, October 4, 1935, about 400 pounds of seed cotton were stolen from defendant Norton's barn, and an investigation was begun the next day upon discovery of the theft. Defendant and his neighbors tracked the automobile (similar to one owned by plaintiff) in which the cotton was removed, to the house of plaintiff's brother, Cooper Green, and the tracks of the tires corresponded with the make of tires on plaintiff's car. Two of defendant's neighbors were up with the sick on that night and saw only one car pass about 2 o'clock in the morning, going towards Cooper Green's house, with no lights, staying a while, and then back, turning into plaintiff's yard, when the lights were turned on. A few minutes thereafter (3 o'clock in the morning) Cooper Green came down the road...

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6 cases
  • Alabama Power Co. v. Neighbors
    • United States
    • Alabama Supreme Court
    • August 21, 1981
    ...v. Caheen Bros., 228 Ala. 432, 153 So. 613 (1934); Molten Realty v. Murchison, 212 Ala. 561, 103 So. 631 (1925); Green v. Norton, 233 Ala. 489, 172 So. 634 (1937); Brackin v. Reynolds, 239 Ala. 419, 194 So. 876 (1940). As we have already determined, APCo did not instigate the criminal proce......
  • Key v. Dozier
    • United States
    • Alabama Supreme Court
    • June 30, 1949
    ... ... v ... Laney, 234 Ala. 475, 175 So. 296; Molton Realty Co ... v. Murchison, 212 Ala. 561, 103 So. 651; Green v ... Norton, 233 Ala. 489, 172 So. 634; McMullen v ... Daniel, 229 Ala. 194, 155 So. 687. And 'as said in ... McLeod v. McLeod, 75 Ala. 483, ... ...
  • Schwabacher v. Herring
    • United States
    • Alabama Court of Appeals
    • October 3, 1950
    ...the facts.--Glidden Co. v. Laney, 234 Ala. 475, 175 So. 296; Molton Realty Co. v. Murchison, 212 Ala. 561, 103 So. 651; Green v. Norton, 233 Ala. 489, 172 So. 634; McMullen v. Daniel, 229 Ala. 194, 155 So. 687. And 'as said in McLeod v. McLeod, 75 Ala. 483, 486: 'The question in such cases ......
  • Rhyne v. H & B Motors
    • United States
    • Alabama Supreme Court
    • January 16, 1987
    ...suspicion that the person is guilty of the crime charged. Gulf States Paper Corp. v. Hawkins, 444 So.2d 381 (Ala.1983); Green v. Norton, 233 Ala. 489, 172 So. 634 (1937). Rhyne was charged with the offense of theft of property in the first degree ( § 13A-8-3, Code of 1975). Theft of propert......
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