Lunsford v. Deitrich

• Decision Date: 18 February 1889
• Citation: 5 So. 461,86 Ala. 250
• Parties: LUNSFORD v. DEITRICH.
• Court: Alabama Supreme Court

5 So. 461

86 Ala. 250

LUNSFORD v. DEITRICH.

Supreme Court of Alabama

February 18, 1889

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by Carl Deitrich against George Lunsford for malicious prosecution. Judgment for plaintiff, and defendant appeals.

Ward & Head, for appellant.

R H. Pearson, for respondent.

CLOPTON J.

Appellant instituted a criminal prosecution against appellee, by causing a warrant for his arrest to be issued by a justice of the peace, on the charge of larceny of the drawings for a building. The criminal proceedings having been terminated and appellee discharged, he brings the action for malicious prosecution. For the purpose of proving that the prosecution was instituted by the defendant, and its termination, the original affidavit made by him, the warrant of arrest, and the docket of the justice, were introduced in evidence against the objection of the defendant. The ground of objection is that the original papers and docket are not self-proving instruments, and should be authenticated by the certificate of the magistrate. It may be conceded that the original papers and docket are not self-proving, and must be sustained by proof of identity. The docket was identified and that such proof in respect to the affidavit and warrant was made is presumable from the bill of exceptions, especially as the want of proof of identity is not specified as a ground of objection. Section 3319 of Code 1886, which makes a statement of any judgment rendered by a justice of the peace, made and certified by him or by his successor in possession of his docket, presumptive evidence of the fact, has been construed as having reference only to judgments in civil cases. In the absence of a statute, a certified transcript of the papers and judgment of a court, not a court of record, is not legal evidence. The proceedings in such courts must be proved by the production of the original papers and docket, accompanied by proper proof of identity and verity, or by sworn copies. Also, in civil causes, section 3319 is merely cumulative, and does not abrogate the former mode of proof. Burns v. Campbell, 71 Ala. 271; Blackman v. Dowling, 57 Ala. 78.

In support of the issue of want of probable cause, it was competent for the plaintiff to prove that the property of the drawings was in him; for it is an essential element of larceny that the goods taken belong to some person other than the taker. For this purpose it was permissible for the plaintiff to prove a universal custom that the drawings for a structure remain the property of the architect, and that the builder is only entitled to the use of them during the time of the construction, to be returned when the building is completed, and also that the defendant had erected buildings by plans and specifications drawn by architects, in order to trace knowledge of the custom to him. But, though the plaintiff may have been the general owner of the drawings the defendant might also have had a special property in them, and the plaintiff be guilty of larceny if he...