Shannon v. Sims
| Decision Date | 10 April 1906 |
| Citation | 40 So. 574,146 Ala. 673 |
| Parties | SHANNON v. SIMS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Walker County; A. H. Alston, Judge.
"To be officially reported."
Action by Maggie Sims against J. S. Shannon. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
This was an action brought by appellee against appellant for malicious prosecution and false imprisonment. Counts 1 and 2 are laid for malicious prosecution; count 3 for false imprisonment. The court permitted the affidavit and warrant by which prosecution was begun against appellee to be introduced in evidence over the objection of appellant. The affidavit was made by one Chambers, and failed to allege probable cause for believing that an offense had been committed. Later on in the trial the plaintiff introduced W D. Sims, her husband, who testified that, soon after plaintiff was arrested, the defendant, Shannon, came to the jail with the sheriff, and while there witness had some words with defendant about the defendant's having his wife arrested, and that the defendant replied that, if she had not stolen the mortgage, she would not have been arrested. The plaintiff was allowed, over the objection of defendant, to introduce the grand jury docket, showing an investigation of the case against plaintiff for stealing the mortgage. The bill of exceptions does not show just what was on said docket.
The court, at the request of the plaintiff, gave the following charges: (1) "If the jury believe the evidence, you must find for the plaintiff." Charge 4: "I charge you that you are not to consider whether or not plaintiff stole the alleged mortgage for $1,900." Charge 5: "If you are reasonably satisfied from the evidence that Chambers swore out the warrant as the representative or agent of Shannon, and the facts were made known to Shannon, and he acquiesced in Chambers' act, I charge you that he thereby ratified the acts of Chambers."
The defendant requested the court to give the following charges which were refused: Charge A: "I charge you, gentlemen of the jury, that there is no evidence before you that the plaintiff suffered any actual damages by reason of the making of the affidavit by Chambers and her arrest on the warrant issued thereon." Charge D, the general affirmative charge. Charges E, F, and G required a finding for the defendant as to counts 1, 2, and 3, if the jury believed the evidence.
There was motion for a new trial which was denied. There was verdict and judgment for the plaintiff.
W. C Davis and A. F. Fite, for appellant.
Bankhead & Bankhead and D. A. McGregor, for appellee.
This case seems to have been tried on three counts; the first two being for a malicious prosecution, and the third for false imprisonment. The affidavit introduced in evidence seems to have been made by one Chambers, who is not a party to the suit, and was prematurely admitted against this defendant because it was not shown that he authorized Chambers to make it or subsequently ratified his doing so, and defendant's objection to the introduction should have been sustained. The error of the court, however, was cured by evidence subsequently introduced by plaintiff, tending to shown that defendant either authorized or ratified the action of Chambers. The defendant and Chambers both denied authorization or ratification; but there was evidence of defendant's conversation with plaintiff's husband at the jail, from which the jury could have inferred that he authorized or ratified the making of the affidavit.
The plaintiff had the right to show in support of her case that the prosecution had terminated, and if the grand jury docket showed an investigation and "No bill," or an investigation and that the cause had not been continued for further investigation, these recitals would be good evidence of a termination of the prosecution favorably to the plaintiff. As the bill of exceptions is not clear as to just what was in the grand jury docket, we need not determine whether there was reversible error committed in this respect or not, as the case must be reversed on other propositions.
As the letters and accounts were subsequently excluded, we need not consider the objections to their introduction.
The affidavit made by Chambers was void, in that it did not aver "probable cause for believing" that an offense had been committed. Monroe v. State, 137 Ala. 88, 34 So 382. And if defendant authorized it or ratified the arrest of plaintiff he would be liable under the last count. While the affidavit was void, the warrant under which the plaintiff was arrested was valid on its face. The...
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Robertson v. State
... ... basis of a criminal proceeding to be sufficient. Monroe ... v. State, 137 Ala. 88, 34 So. 382; Sims v ... State, 137 Ala. 79, 34 So. 400; Butler v ... State, 130 Ala. 127, 30 So. 338. Both of the parties in ... this case rely upon the case ... 201, ... 50 So. 270; ... [104 So. 572] Butler v. State, 130 Ala. 127, 30 So. 338; ... Sims v. State, 137 Ala. 79, 34 So. 400; Shannon v ... Simms, 146 Ala. 673, 40 So. 574; Monroe v. State, ... 137 Ala. 88, 34 So. 382; Streater v. State, 137 Ala ... 93, 34 So. 395. Where ... ...
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...if the papers are a "colorable" charge of an offense. Hotel Supply Co. v. Reid, 1918, 16 Ala.App. 563, 80 So. 137, 138; Shannon v. Simms, 1906, 146 Ala. 673, 40 So. 574. 5 Rich v. McInery, 1894, 103 Ala. 345, 15 So. 663; Daniels v. Milstead, 1930, 221 Ala. 353, 128 So. 447; King v. Gray, 19......
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...approval in Jordan v. Empiregas, Inc., 337 So.2d 732 (Ala.1976), but its rationale is traceable to the earlier case of Shannon v. Simms, 146 Ala. 673, 40 So. 574 (1906), where this Court held that if a defendant fairly submits the facts to the prosecution authority, then signs the affidavit......
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