Thompson v. Richardson

• Decision Date: 02 November 1892
• Citation: 96 Ala. 488,11 So. 728
• Parties: THOMPSON v. RICHARDSON.
• Court: Alabama Supreme Court

11 So. 728

96 Ala. 488

THOMPSON v. RICHARDSON.

Supreme Court of Alabama

November 2, 1892

Appeal from circuit court, Mobile county; WILLIAM E. CLARKE, Judge.

Action by A. G. Richardson against N. Q. Thompson for malicious prosecution. Judgment for plaintiff. Defendant appeals. Reversed.

This action was brought by the appellee against the appellant and, as is stated in the opinion, sought to recover damages for malicious arrest. The facts are sufficiently stated in the opinion. On the examination of one Ira W. Pringle, he testified that he was a justice of the peace of Mobile county, and tried the case of the state against Richardson the plaintiff, with Mr. Taylor. The attorney for the plaintiff then asked the witness, "What was the evidence before you in the case on that trial?" The defendant objected to this question because it called for irrelevant and immaterial testimony, and also called for secondary evidence. The court overruled the objection, and the defendant duly excepted. The witness thereupon testified what was the evidence on the trial. Among the other instructions given by the court in its general charge, in reference to the property stolen or alleged to have been stolen by Richardson was the following: "When property is stolen, and then found in the recent possession of a person, the presumption is that he stole it, unless he gave a reasonable and satisfactory explanation of how he came into the possession of it, and that he came into the possession honestly." The defendant excepted to this portion of the general charge and also excepted to the court's refusal to give the general affirmative charge in his behalf. There was judgment for the plaintiff, and the defendant brings this appeal, and assigns as error the various rulings of the lower court.

Gregory L. & H. T. Smith, for appellant.

Clarkes & Webb, for appellee.

MCCLELLAN J.

The original complaint in this cause consisted of only one count which claimed $10,000 damages, for that the defendant, maliciously and without probable cause therefor, caused the plaintiff to be arrested under a warrant issued by a justice of the peace on a charge of larceny, etc. A second count was added by amendment, which claimed $5,000 damages, for that the defendant, maliciously and without probable cause therefor, caused the arrest and imprisonment of plaintiff on a charge of stealing an ox, etc. At the trial plaintiff was allowed, against defendant's objection, to adduce in evidence, as the charge on which the warrant was issued and arrest made, the following complaint: "The state of Alabama, Mobile county. Personally appeared before me, G. W. Taylor, N. Q. Thompson, who, being by me duly sworn, deposes and says that A. G. Richardson did steal or remove one ox from said range. Subscribed and sworn to before me this 22d day of July, 1891. N. Q. THOMPSON,"-and also the warrant, which merely commands the arrest of Richardson, if found in the county. The defendant excepted to and now assigns this action of the court as error. The justice of the peace was permitted to testify that Thompson signed the affidavit; and to this, also, the defendant objected and excepted. These exceptions were, in our opinion, well taken. The affidavit made by the defendant does not contain a charge of larceny as alleged in the first count of the complaint, nor a charge that plaintiff did steal an ox, as alleged in the second count. The averment is that Richardson "did steal or remove one ox from said range." This is not an affirmation that Richardson stole the ox, but a disjunctive averment that he did one of two things with respect to the ox. He either stole it, which would be larceny, or he removed it from the range, which, assuming the animal did not belong to him, would be trespass only, and not larceny at all. And hence it cannot be said that the affidavit contains any charge of larceny, or of "stealing an ox." Horton v. State, 53 Ala. 488; Noble v. State, 59 Ala. 73; Mays v. State, 89 Ala. 37, 8 South. Rep. 28. Yet it may be that the charge of malicious prosecution could be based upon such a complaint, though it does not charge the offense of larceny, or any offense, indeed, known to the law. Its effect was to inaugurate a prosecution, and set in motion the arm of the criminal law, against Richardson; and the operation of criminal administration upon him might be as oppressive and injurious as would have been the case had the charge of larceny been adequately stated. Indeed, the evidence in this record shows that the course and termination of the prosecution under this abortive effort to charge a crime were in all respects the same as had the effect been successful. But that is not the question we have here. It is not material...