Sims v. Kent

• Decision Date: 09 October 1930
• Docket Number: 7 Div. 966.
• Citation: 130 So. 213,221 Ala. 589
• Parties: SIMS v. KENT.
• Court: Alabama Supreme Court

130 So. 213

221 Ala. 589

SIMS v. KENT.

7 Div. 966.

Supreme Court of Alabama

October 9, 1930

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action for malicious prosecution by N. D. Kent against J. R. Sims. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals.

Affirmed.

E. O McCord & Son, of Gadsden, for appellant.

Alto V Lee, of Gadsden, for appellee.

FOSTER J.

This is an action in which the only count submitted to the jury was for malicious prosecution.

Plaintiff introduced the warrant for his arrest upon affidavit made by defendant before the judge of the county court. Defendant announced that he had no objection to the affidavit and warrant, but that he did object to the indorsement on it. The indorsement was signed in the name of the sheriff by deputies, and showed the arrest and imprisonment of plaintiff. No ground of objection was assigned. But appellant argues here that the indorsement was not properly identified.

In the case of Lunsford v. Dietrich, 86 Ala. 250, 5 So. 461, 11 Am. St. Rep. 37, the original affidavit and warrant were offered in evidence. Objection was made that they were not self-proving. The court conceded that they must be sustained by proof of identity, but there was no such ground of objection, and therefore no error appeared. Such is the condition of the record in this case. It may be observed further that the affidavit and warrant were in effect conceded to be duly identified. The indorsement was a part of them and thereby became also identified. By authority of section 7681, Code, a transcript of such document, duly certified, would be admissible in evidence. When an original of a document of the nature there referred to is identified as such, it is admissible the same as a transcript would be. Ramage-Parks & Co. v. Folmar, 219 Ala. 142, 121 So. 504. We do not find reversible error in this respect.

The complaint claimed special damages for being away from his family, and for mental pain and anguish, humiliation, shame, and disgrace. Over defendant's objection, the court permitted proof of the fact that plaintiff had a wife and two boys; that they all lived on defendant's place, about fifteen miles from Gadsden, after having testified that he was arrested and put in jail Saturday afternoon between 5 and 6 o'clock, where he remained until Sunday night about 7 o'clock.

When specially claimed in the complaint, damages resulting from being deprived of the society of his wife and children is a proper element of compensatory damages in an action of this sort. Wilson v. Vassar, 214 Ala. 435, 108 So. 250; Walling v. Fields, 209 Ala. 389, 96 So. 471; Killebrew v. Carlisle, 97 Ala. 535, 12 So. 167. Such is also the rule generally in other states. Davis v. Seeley, 91 Iowa, 583, 60 N.W. 183, 51 Am. St. Rep. 356.

Plaintiff had been cultivating land for defendant under an arrangement whereby defendant furnished the land and teams and plaintiff the labor, and the crops were to be equally divided. Plaintiff hired a truck and carried a bale of cotton to gin and sold it. This was the basis for the prosecution. The court allowed plaintiff to prove that defendant in July took away from plaintiff the team he had furnished to make the crop. This was admitted as a circumstance in explanation of plaintiff's conduct in hiring a conveyance to carry the cotton to the gin. We find no error in this ruling. Plaintiff carried off and sold the first bales of his cotton, without the knowledge or consent of defendant. This was on September 21st. On the next day he went to see defendant. They differ as to what occurred. Plaintiff claims that, though he only gave defendant half of the proceeds, he offered to give it all to him, except enough to pay for some groceries. Defendant claims he made no such proposal, but declined to give him any except the half which he received, though he owed defendant on account for advances. On that day defendant made an affidavit charging plaintiff with selling the cotton with intent to hinder, delay, or defraud affiant having a claim, etc. This was under section 4925, Code, which makes the offense punishable like larceny. The cotton was worth over $25, and the affidavit charged a felony. On that affidavit a warrant was issued, defendant was arrested and imprisoned.

After plaintiff had testified that before he was arrested, but on the same day, he told defendant that he had five bales of cotton that needed picking right then, the court permitted him to prove that he had eight bales of such cotton open in the field, and its value and the value of the seed. Upon the issue of fraudulent intent, evidence of that nature is doubtless admissible. Cobb v. State, 100 Ala. 19, 14 So. 362. But proof of circumstances showing the innocence of plaintiff is not primarily admissible, unless there is evidence that defendant was so informed. Hanchey v. Brunson, 175 Ala. 236, 56 So. 971, Ann. Cas. 1914C, 804; Gulsby v. L. & N. R. R. Co., 167 Ala. 122, 52 So. 392; Parisian Co. v. Williams, 203 Ala. 378, 83 So. 122; American Surety Co. v. Pryor, 211 Ala. 114, 99 So. 636.

The fact that he had information that there were five instead of eight bales of the cotton had the effect, we think, of rendering the evidence admissible unless the variance between five and eight should create a different effect. If so, we think, the attention of the court should have been directed specially to that feature of the evidence by a sufficient ground of objection. There was no such ground assigned. Our conclusion is that the rulings of the court in this respect do not show reversible error.

The transcript of the pertinent entries in the grand jury docket was admitted in evidence without objection or error. Morgan v. Baird, 219 Ala. 225, 121 So. 526; Shannon v. Simms, 146 Ala. 673, 40 So. 574.

We see no valid objection thereafter to the action of the court in permitting the...