Hartshorne v. Smith

• Citation: 30 S.E. 666,104 Ga. 235
• Parties: HARTSHORNE. v. SMITH.
• Decision Date: 13 April 1898
• Court: Supreme Court of Georgia

30 S.E. 666

104 Ga. 235

HARTSHORNE.

v.SMITH.

Supreme Court of Georgia.

April 13, 1898.

Malicious Prosecution —Probable Cause— What Constitutes.

1. Though one arrested upon a criminal warrant be discharged by the magistrate, yet if the prosecutor, with due diligence, follows up the prosecution, and carries it on in a court having jurisdiction to try the case upon its merits, this is, in effect, a continuation of the original prosecution.

2. If, in such cases, the accused be convicted in the trial court, such conviction, if not procured by fraud, is conclusive of probable cause, although the same on writ of error may be set aside by the supreme court.

3. The evidence demanded a verdict for the defendant. Therefore the judge properly directed a verdict in his favor, and erred in setting the same aside.

(Syllabus by the Court.)

Error from superior court, Floyd county; W M. Henry, Judge.

Action by John M. Smith against Charles H. Hartshorne. The court directed a verdict for the defendant, which, on motion, was set aside, and a new trial granted, and defendant brings error. Reversed.

Halstead Smith and Dean & Dean, for plaintiff in error.

Max Meyerhardt and G. A. H. Harris, for defendant in error.

LITTLE, J. Smith based his right to recover damages against Hartshorne for a malicious prosecution on the ground that on the 24th day of June, 1893, Hartshorne swore out before a magistrate a warrant charging him with the offense of larceny, by "stealing six poplar saw logs, of the value of twelve dollars, the property of Harris-Hartshorne Lumber Co., " etc., and an entry made by the magistrate upon said warrant on July 8, 1893, in the following language: "Upon hearing evidence in this case, the within warrant is dismlsssed, the defendant dis charged." The plaintiff alleged that he was arrested under this warrant; that the prosecution was maliciously carried on thereunder, and without any probable cause; and that he had been damaged by reason of such malicious prosecution in the particulars outlined in the petition. At the trial the warrant above referred to was introduced in evidence; but the entry of the magistrate thereon, discharging the accused, was excluded by the court, upon the ground that the entry on the docket of the justice of the peace was the highest evidence of the judgment of the justice, and that the proposed evidence was secondary and inadmissible until the absence of the docket was accounted for. The defendant introduced in evidence an Indictment by the grand jury of Floyd superior court, found at the September term, 1893, against John Smith, for the larceny of six poplar logs, the property of the Harris-Hartshorne Lumber Company, of the value of $12; and it was not denied that the six poplar logs referred to in the indictment were the same as those referred to in the warrant previously issued. The defendant also introduced in evidence a verdict rendered in the city court of Floyd county, to which court the case arising under the indictment had been transferred by the judge of the superior court. This verdict was rendered at the March term of the city court, and was as follows: "We, the jury, find the defendant guilty, and recommend him to the mercy of the court." The plaintiff then introduced in evidence the remittitur from the supreme court in the case of Smith v. State, 21 S. E. 45, showing that the verdict of guilty in the city court had been set aside, and a new trial granted. Smith testified that he had been arrested under the warrant; that there was a trial on that warrant, and he was discharged; that he did not steal the poplar logs, as charged in the indictment. Upon this state of facts, the' court directed a verdict for the defendant, and afterwards, upon the hearing of a motion for a new trial filed by the plaintiff, ordered that such verdict be set aside, and a new trial granted, "upon the ground that the court erred in rejecting the entry of the justice of the peace upon the warrant, discharging the defendant, John Smith, and upon the further ground that, with or without this entry in evidence, the court erred in directing a verdict for the defendant, and in not submitting the case to the determination of the Jury." To this order, setting the verdict aside and granting a new trial, the defendant excepted.

1. While it is declared by section 3849 of the Civil Code, with respect to malicious prosecutions, that an inquiry before a committing court or justice of the peace amounts to a prosecution, it is also declared in the succeeding section (3850) that the prosecution must be ended before the right of action accrues. It is contended by thedefendant In error that his discharge by the magistrate, upon the preliminary hearing under the warrant sworn out by the plaintiff in error, was such a termination of the prosecution as that the action to recover damages for a malicious prosecution would lie. In this view, however, under the facts of this case, we cannot concur. It is probably true, if, upon the dismissal of the warrant and the discharge of the accused by the magistrate, the prosecutor had abandoned a further prosecution of the accused, or had delayed the same for such an unreasonable time as to lead the accused to believe that he had discontinued the prosecution, the action would He. But in the present case it appears that on the 24th day of June, 1893, the prosecutor swore out the warrant against the accused; that on July 8, 1893, the magistrate, after hearing evidence, discharged the accused; and that at the September term, 1893, of Floyd superior court (which was the first sitting of that court after the hearing before the magistrate), the prosecutor, following up the prosecution against the accused, procured the indictment against him, by the grand jury, for the same offense with which he was charged in the warrant previously sworn out. This action on the part of the prosecutor negatived any intention on his part to discontinue the prosecution, and showed that he, with due diligence, was following up and continuing the original prosecution in a court having jurisdiction to try the case upon its merits. As before said, if a criminal prosecution has been dismissed with no intention of commencing it again, or if delay has been made in commencing the prosecution again, so as to lead the accused to believe that it had been finally terminated, and If he had then and at once commenced his action for a malicious prosecution, he might probably maintain the same. But, in all...