Walker v. Shedden

Jenkins, P. J. Walker sued Shedden and North for damages for an alleged malicious prosecution, alleging that Shedden swore out a warrant against him, charging him with larceny after trust, and that North conspired with Shedden in the prosecution, and “that he advised and consulted and helped with said prosecution maliciously to convict your petitioner.” The petition charges, that the prosecutioi v/as without probable cause, and that the petitioner was innocent of the charge brought against him; that after the issuance of the warrant he was arrested and incarcerated for two or three hours; that he was subsequently indicted for the offense charged in the warrant and tried by the superior court, and a verdict of not guilty returned in his favor by a jury. He alleged that the prosecution was malicious and was instituted for the purpose of injuring and damaging the plaintiff’s reputation in his community. The defendants answered, denying in substance the allegations of the petition and setting up that the prosecution was justified and was had under the advice of competent attorneys and of the solicitor-general of the Coweta circuit, who, after a full, fair, and complete statement of the facts, advised defendants that the facts related amounted to a violation of the criminal law, and that in carrying on such prosecution they acted in entire good faith, and that on the trial the plaintiff’s guilt was established by overwhelming evidence. At the trial of the instant case the defendants assumed the burden of proof and introduced evidence showing that the plaintiff Walker was indebted to the defendant Shedden’s wife, whose ten [261] ant lie was, for certain supplies; that North, acting as agent for Mrs. Shedden, had received from the plaihtiff certain cotton warehouse receipts as collateral to the indebtedness; that North delivered the receipts to the plaintiff in order that he might sell the cotton and apply the proceeds to the indebtedness; that Walker sold the cotton and then informed North that he did not have enough money to pay his indebtedness to Mrs. Shedden in full, and offered to pay the balance in farm products, and that upon North’s refusal to accept the farm products in payment, Walker refused to turn over the proceeds of the cotton to North. Both North and Shedden testified that before taking out the warrant they conferred with attorneys, who advised them that the facts stated amounted to a violation of the law by Walker, and that after the issuance of the warrant, but before it was served by the sheriff, and before it was delivered to the sheriff for execution, they consulted the solicitor-general, giving him a full, fair, and complete statement of the facts, and that he advised that a prosecution for larceny after trust would lie. The testimony of the plaintiff Walker as to the transaction with North was substantially the same as that offered by the defendants, except that Walker testified that the cotton warehouse receipts were not deposited with North as collateral, but were simply placed with him for safe-keeping in the bank of which he was president; he further testified that both North and Shedden were “mad” with him. At the conclusion of the evidence the court, on motion, directed a verdict for the defendants, and the plaintiff excepted. Judgment reversed. Stephens and Bell, JJ., concur.