CAUSEY V. STATE.

[79 GEORGIA, 564.]

LARCENY.-TAKING PROPERTY UNDER A FAIR CLAIM OF RIGHT is not larceny, and the publicity of the taking is very powerful evidence of the good faith of the claim.

Steed and Wimberly, for the plaintiff in error.

J. L. Hardeman, solicitor-general, for the state.

BLECKLEY, C. J. Causey was tried for stealing a bell. He had been driving a milk-wagon for Mr. Gunn, in the city of Macon, and had bought a bell to be used in warning or attracting customers, and upon being discharged by Mr. Gunn, had left his bell. He found other employment, and Mr. Gunn engaged a successor to him in driving the milk-wagon, and the bell was turned over to his successor, who used it for some time. On one occasion he left his wagon in a public street in Macon, and Causey went to the wagon to get his bell. Not finding the driver there, he took up the bell, and rang it loudly for some time, perhaps a minute. No one came, and Causey turned to a by-stander whom he knew (there were several persons present), and requested him to tell the driver when he came that he had taken his bell. The message was not delivered, because the person to whom it was committed failed to remember it; and the new driver prosecuted Causey for stealing the bell. He was tried in the city court without a jury; the judge found him guilty, and sentenced him to a punishment for the offense as a misdemeanor. He made a motion for a new trial, on the ground that the conviction was contrary to law, and without sufficient evidence; and the motion was denied.

In the argument of the case here, the solicitor-general, representing the state, conceded that a' new trial ought to be granted; and we agree with him that, taking all the facts and circumstances together, there is a fair presumption that Causey acted under a bona fide claim of right.

The evidence was pretty decided that he had left the bell as the property of Mr. Gunn, his employer, and that Mr. Gunn had accounted to him for the purchase of the bell in settling their accounts for milk-money. The real question was, whether that accounting took place. Causey, at the trial, had a book, kept in his way, in which he stated he entered his receipts and payments; and he submitted that book. It seems not to

have been very intelligible, and doubtless it was his unfortunate manner of keeping books that disabled him from replying to this evidence. It was very likely that the witness, Mr. Gunn, thought that the bell had been accounted for, and indeed, if he was a truthful man, he did (and we assume that he was); but he was probably mistaken, and the circumstances under which the bell was taken tend very strongly to show that he was mistaken, and this book, if it could have been made available to this man, would have indicated the good faith of his claim of right. The authorities are abundant that when one takes property under a fair claim of right it is not larceny; and the publicity of the taking is very powerful evidence to establish the bona fides of the claim of right. There could hardly have been greater publicity, because this was done in an open street, near the heart of the city, as we would infer from the evidence; and the ringing of the bell was loud enough to be heard in adjacent streets, so the witnesses testified. It seems he made a sort of bell-ringing proclamation that he was about to resume his ancient possession, and seemed to desire it to be known and observed of all men; and that is a very strong circumstance in favor of the man's innocence. In addition to this, he proved a good character for honesty and integrity. He appears, from this record, to be a man of excellent standing for a colored man, and it is very probable that he is innocent of the crime of larceny; and we reverse the judgment, and direct that the case be tried again.

As to claim of right, see 1 Hale P. C. 509; 2 Russell on Crimes, 163; 2 Archbold's Crim. Pl. & Pr. 1183; 1 Wharton's Crim. Law, 884; 1 Bishop's Crim. Law, secs. 884, 297; 2 Id., sec. 851.

As to open taking, see 1 Hale P. C. 509; 2 Russell on Crimes, 158; 2 East P. C. 661; 2 Bishop's Crim. Law, sec. 842, note 1; 2 Archbold's Crim. Pl. & Pr. 1183, note 1.

Judgment reversed.

LARCENY WHAT IS NOT.

A strong presumption arises, on prosecution for larceny, that there was no felonious intent, if the taking was open and notorious, and there was no subsequent attempt to conceal the property, and no denial, but an avowal, of the taking: Black v. State, 83 Ala. 81; 3 Am. St. Rep. 691, and note 698.

COLEMAN V. ALLEN.

[79 GEORGIA, 637.]

TO SUSTAIN ACTION FOR MALICIOUS PROSECUTION, there must be a concurrence of malice and want of probable cause.

MALICIOUS PROSECUTION - PROBABLE CAUSE. - The provision of the code of Georgia declaring that "want of probable cause shall be a question for the jury, under the direction of the court, and shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused," does not limit want of probable cause to cases where the accuser had no ground for proceeding but the desire to injure the accused. The accuser may still be guilty of proceeding without proper cause, though his motive is wholly free from any independent wish to injure the accused. MALICIOUS PROSECUTION-INSTRUCTION. It is an error to instruct the jury, in determining whether the defendant had acted without probable cause, to consider whether he acted "as you would act under the same circumstances."

MALICIOUS PROSECUTION. THAT THE MOTIVE OF THE PROSECUTOR was to make an example of the accused, and thereby to deter others from committing crime, does not render the former guilty of malicious prosecution, if he had reasonable cause to believe the latter to be guilty of the crime charged. CRIMINAL LAW.. MORTGAGOR MAY BE GUILTY OF A FRAUDULENT DISPOSITION of the mortgaged property, and of occasioning loss to the mortgagee, under section 4600 of the code of Georgia, though he has other property from which the mortgagee could have collected the debt secured by his mortgage. The mortgagee is entitled to be satisfied out of the specific property, and the mortgagor has no right to throw his secured creditor on his general estate.

CRIMINAL LAW. THE REFUSAL OF THE MORTGAGOR TO PRODUCE OR POINT OUT THE MORTGAGED PROPERTY to an officer who is seeking to levy thereon to satisfy the mortgage is not a criminal offense, but it may be a strong circumstance to indicate fraud. INSTRUCTION IN AN ACTION FOR MALICIOUS PROSECUTION, that "in cases of this character, the injury, if any is proved to your satisfaction, is to the peace, happiness, etc., of the plaintiff; no measure of damages can be prescribed except the enlightened conscience of impartial jurors," is correct, if confined to that part of the case wherein there can be no exact measure of damages, but it should be so limited that the jury will not apply it to that part of the case where the exact amount of damages has been proved, such as expenses in counsel fees, loss of time, and the like. MALICIOUS PROSECUTION - ELEMENTS OF DAMAGES. - The pecuniary cir cumstances of the defendant may be considered by the jury in an action of malicious prosecution under the code of Georgia, which declares that "the injury shall not be confined to actual damages sustained by the accused."

ACTION for malicious prosecution.

Lofton and Moore, and Bacon and Rutherford, for the plaintiff in error.

Dessau and Bartlett, for the defendant in error.

AM. ST. REP., VOL. XI.-29

BLECKLEY, C. J. Allen mortgaged to Coleman and Newa mule and a one-horse wagon. Newsom died, and Coleman, as surviving partner, foreclosed the mortgage. A mortgage fi. fa. was issued; search was made for the property, and it was not found. Certain information came to Coleman indicating that the property had been disposed of by Allen. Coleman took the advice of counsel learned in the law, and thereupon made the requisite affidavit to impute an offense under section 4600 of the code, charging that the property had been fraudulently disposed of, procured a warrant for the arrest of Allen, and Allen was arrested, detained in custody upon the streets of Macon a few hours, and was then permitted to go home, on his promise made to the sheriff to return and give bond. Afterwards he returned and gave a bond for his appearance to answer the charge. At a subsequent term of the city court of Macon, another affidavit was made by Coleman, charging that the property had been fraudulently sold and disposed of. Upon that affidavit an accusation was framed, and Allen was tried and acquitted; after which he brought his action against Coleman for malicious arrest and malicious prosecution, founding his action upon both proceedings, that is, the warrant, his arrest under it, and the subsequent prosecution in the city court. He laid damages in his declaration, generally, at a large sum; and alleged special damage in that he was put to expense in defending himself, and that he lost time, etc. On the trial he proved these special damages. The jury found for the plaintiff a verdict for one thousand dollars. The defendant moved for a new trial, on various grounds, which motion was denied. It is the judgment refusing the new trial that we have now to review.

1. The general principle that, in an action for malicious prosecution, there can be no recovery without a concurrence of the want of probable cause with malice, is fully recognized. If probable cause and malice are both present, there can be no recovery; if they are both absent, there can be none. In this class of actions, it is only where malice is present and probable cause is absent that there can be a recovery.

The seventh ground of the motion for a new trial complains of the charge of the court as follows: "Probable cause means nothing more than reasonable grounds. Probable cause is that apparent state of facts which seems to exist after reasonable and proper inquiry." The eighth ground complains that the court charged: "Now, whilst no man should be deterred

from prosecuting a case on the criminal side of the court, where he honestly believes, after due and proper inquiry,— either upon his own knowledge, or upon reliable information furnished by others,- that a crime has been committed, yet he must not act hastily, or without ordinary caution or reasonable diligence in instituting a prosecution, and if he so acted without reasonable diligence, and hastily and unreasonably, he is responsible for damages." The ninth ground complains that the court charged: "See whether the defendant acted on probable cause and without malice or not; in other words, find out what his diligence was as to this matter. Take it all into consideration, and see whether he acted with ordinary care, and as a man of ordinary prudence would act under the same circumstances, or as you would act under the same circumstances."

Leaving out the last member of the last sentence, "or as you would act under the same circumstances," the main objection urged against the charge, as it respects probable cause, is, that it conflicts with section 2983 of the code, which section reads thus: "Want of probable cause shall be a question for the jury, under the direction of the court, and shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused." It is contended that this is exhaustive of all possible cases of the absence of probable cause; that unless a reasonable man would not be satisfied by the circumstances that the accuser had no ground for proceeding but his desire to injure the accused, there would be the presence of probable cause. We think this construction a mistaken one. The section declares that the question shall be one for the jury, under the direction of the court; but it does not leave the whole range of the question to the jury. It undertakes to settle an instance in which the court and jury shall recognize the absence of probable cause. That instance is, when the circumstances are such that the prosecution must be attributed solely to a desire to injure the accused. Of course, want of probable cause exists when there is no ground but the desire to injure. That is the extreme case of legal malice. But it does not follow that if a man has no ground but the desire to benefit his grandmother, probable cause might not be absent in that instance. The absence of probable cause is to be found in every case where there is no inducement for the prosecution except the desire to injure the accused. But it