Price v. Cobb

• Court: Georgia Court of Appeals
• Writing for the Court: GARDNER, Judge.
• Citation: Price v. Cobb, 63 Ga.App. 694, 11 S.E.2d 822 (Ga. App. 1940)
• Decision Date: 23 November 1940
• Docket Number: 28535.
• Parties: PRICE et al. v. COBB.

11 S.E.2d 822

63 Ga.App. 694

PRICE et al. v. COBB.

No. 28535.

Court of Appeals of Georgia, Division No. 1.

November 23, 1940

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Oliver & Oliver, of Savannah, for plaintiffs in error.

Shelby Myrick, Abrahams, Bouhan, Atkinson & Lawrence and Kennedy & McWhorter, all of Savannah, and J. Henry Howard, of Sylvania, for defendant in error.

GARDNER Judge.

On June 5, 1939, the plaintiff, Albert L. Cobb, having formerly brought an action against certain named defendants for malicious prosecution, and thereafter, pursuant to the decision of this Court (Price v. Cobb, 60 Ga.App 59, 3 S.E.2d 131), having dismissed that cause of action, re-brings his action on substantially the same cause and against the same parties defendant save as the cause in the instant case became more immediately predicated on a later and final process supporting the continuing cause formerly existing, and as the cause has been amended voluntarily or responsively to the order of the court, or as parties have been added by the plaintiff or stricken by order of the court. The parties defendant as finally made were T. M. Price and E. J. Bowman of Chatham County, C. M. Daughtry, Tom D. Daughtry, Marie Daughtry Lipsey (known as Marie Daughtry), Mrs. Ola Brunson, B. B. Barber, and B. W. Miller of Screven County, B. F. Clayton of Jenkins County, and Mrs. C. J. Oliver of Emanuel County, all of whom, save B. W. Miller, who prosecuted separate exceptions, are before the Court as plaintiffs in error.

The plaintiff, alleging that he had been injured and damaged in a certain sum because of malicious prosecution by the named defendants for the murder of one C. L. Daughtry, made substantially the following material allegations as briefed from the original and amended petition. The defendants, together with a certain attorney employed to assist the prosecution, the solicitor general and the judge (not named as defendants), entered into an unlawful, immoral, and malicious plot or conspiracy on or about October 10, 1937, with the intent and purpose of falsely and maliciously charging, indicting, prosecuting, and convicting the plaintiff of the murder of Daughtry. Pursuant to this conspiracy the defendants caused the grand jury to indict the plaintiff on November 16, 1937, on false and perjured testimony of certain named witnesses. On this indictment the court ruled the defendant to trial on March 7, 1938, when the solicitor general requested and obtained an order of the court nol-prossing this indictment because of a total lack of evidence of the plaintiff's guilt. Further pursuing the unlawful conspiracy, the defendants and their coconspirators thereafter, on August 5, 1938, again caused a presentment (same effect as indictment) to be returned against the plaintiff on false and perjured testimony, again falsely and maliciously charging him with the murder of Daughtry, on which he was maliciously tried on September 5, 1938, which resulted in his acquittal and in a termination of the malicious prosecution against him. The defendant, Marie Daughtry Lipsey, ratified and participated in the conspiracy on or about December 7, 1937, and continued in active participation until the prosecution terminated. The alleged coconspirators, the attorney assisting the prosecution, the solicitor general, and the judge, and the defendant B. W. Miller, having joined, at least some of them as of October 10, 1937, ratified the conspiracy on or about November 16, 1937, and continued in active participation until the prosecution ended. The coconspirator, the attorney assisting the prosecution, as counsel for the conspirators, with full knowledge of the unlawful conspiracy, acted on behalf of the conspirators to prosecute the plaintiff under the false charge of murder, knowing that the prosecution was malicious and without probable cause. The coconspirators, the solicitor general and judge, were such officers respectively, of the judicial circuit while engaged in the unlawful conspiracy and acted in concert and confederation with the defendants, knowing that the prosecution was false and malicious, and as alleged, without probable cause. There was no truthful, material evidence with which to charge the crime. The plaintiff was innocent and was acquitted. All the conspirators and coconspirators knew the charge was false, and the prosecution malicious and without probable cause. The first finding of the grand jury was an indictment, copy of which was attached to the petition. The second return was by special presentment, which was also, by amendment, attached to the petition, and named others as codefendants with plaintiff in that process. "In this special presentment," according to brief of plaintiffs in error, "of August 5, 1938, returned against Ralph Newton, Joe Newton, and Albert L. Cobb, it is alleged that Osborne Newton and John Burns and Lonnie Lanier and Aaron Nelson had been previously indicted by this grand jury for said offense of murder *** the solicitor general proceeded with due dispatch and in accordance with law at the May adjourned term, 1938, of Screven Superior Court to secure a second indictment against some of the parties named in the first indictment, before the expiration of six months," and "since the grand jury by special presentment returned an indictment against Joe Newton, Ralph Newton, and Albert L. Cobb on August 5, 1938, the special presentment was likewise within the six months period from the date of the nolle prosequi of March 7, 1938."

The court overruled the general and special demurrers to the petition as amended. To this judgment the defendants excepted. The court also overruled the motion to dismiss as to Marie Daughtry Lipsey, who excepted. All appear as plaintiffs in error.

1. "A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, shall give him a cause of action." Code, § 105-801. "The prosecution must be ended before the right of action accrues." Code, § 105-806. Actions for malicious prosecution are not favored. Henderson v. Francis, 75 Ga. 178(5); Hearn v. Batchelor, 47 Ga.App. 213, 215(5), 170 S.E. 203. While the action will be strictly guarded and the circumstances on which it is based must be accurately stated (Hearn v. Batchelor, supra, 47 Ga.App. 215[5], 170 S.E. 203) and "all proper guard and protection should be thrown around those who, in obedience to the mandates of duty, may be compelled to originate and carry on a criminal prosecution," the courts "should not discourage actions for malicious prosecutions by establishing harsh rules of evidence, or by the rigid principles of law, by force of which a party may be deprived of an important remedy for a real injury." Hicks v. Brantley, 102 Ga. 264, 270, 29 S.E. 459, 461. The right of action subsists, and is codified in the statutes. Code, § 105-801 et seq. The adequacy of pleading, to set forth a cause of action, is measured by the same rules of pleading as obtain generally in any other cause pleaded. Evidentiary facts need not be pleaded. In Lefkoff V. Sicro, 189 Ga. 554(10), 6 S.E.2d 687, 690, the Court held: "Good pleading requires only that the plaintiff plainly and concisely state the material ultimate facts" on which the plaintiff "depends for recovery"; and, "As a general rule, the evidentiary facts upon which the plaintiff relies to prove the ultimate facts need not and should not be set forth in the pleadings."

In the instant case the plaintiff alleged that certain named defendants, on stated times and occasions, entered into a conspiracy to falsely charge the plaintiff with the murder of one C. L. Daughtry, and to secure his indictment and conviction, with malice and without probable cause, that they did, on perjured testimony of named witnesses procured by them, effectuate an indictment charging the plaintiff with the crime, that this indictment was nol-prossed by the solicitor general acting under the sanction of the court that the plaintiff was reindicted or presented again on perjured testimony, that the plaintiff was on the second indictment or presentment maliciously tried, without probable cause, and acquitted, that the solicitor general knew of and engaged in the conspiracy to falsely and maliciously prosecute the plaintiff without probable cause, that he and other of the named defendants went before the grand jury and insisted that the plaintiff was guilty and that the solicitor general was in possession of evidence or accessible to evidence that would convict the plaintiff were the grand jury to indict him, that an attorney employed to assist in the prosecution sought to obtain perjured testimony from a defendant jointly indicted with plaintiff for the murder of Daughtry in order to convict the plaintiff; that the judge named in the allegations knew of the conspiracy and condoned and promoted it by allowing and directing the prosecution to proceed, that the appearance for the illegal purposes indicated by the solicitor general and other named conspirators was upon the occasion of each indictment or presentment being returned; that the prosecution had terminated favorably to the plaintiff and that the plaintiff had sustained certain specified injuries. When under these ultimate facts alleged the plaintiff pleaded the conspiracy, the malice to prosecute and injure the plaintiff, and prosecute without probable cause, and that the prosecution had ended favorably to the plaintiff, together with the other supporting allegations, we think as against a general demurrer the petition was good. In this connection see Woodruff v. Hughes, 2 Ga.App. 361(3), 58 S.E. 551, 552, where it was held, with reference to the petition withstanding a general demurrer,...