Anderson v. Keller , 67 Ga. 58 ( 1881 )

-Crawford, Justice.

This was an action on the case for damages for a mali•cious prosecution, brought by the plaintiff in error against the defendant, for suing out a warrant charging him with the offence of cheating and swindling.

During the trial of the case, the plaintiff excepted to the rulings of the court rejecting the judgment of the •magistrate at the preliminary trial, in so far as the reasons given therefor appeared in said judgment, in ruling out certain answers of C. C. Anderson, and in suppressing the interrogatories of C. C. Gordon, one of his witnesses. The testimony of the plaintiff having been submitted, a motion for a non-suit was made, which the coujt granted, and the plaintiff again excepted.

1. The record discloses the fact to be, that after the introduction of the affidavit, warrant, arrest and bond in the criminal prosecution against the plaintiff, the judge excluded the indorsement of the magistrate discharging the prisoner, to the extent of the reasons given therefor by the magistrate ; these reasons being that there was no evidence going to show probable cause to suspect the guilt of the accused. There was no error in so ruling.

The question upon this trial was malice and the want of probable cause. The judgment of the magistrate discharging the plaintiff was admissible, but any reason given for that judgment should not have been admitted as evidence in this case. The plaintiff was entitled to its legal effect, but nothing more.

2. The second assignment of error is the ruling out the answers to certain interrogatories of C. C. Anderson, because the questions were illegal. An examination of the interrogatories ruled upon as leading and otherwise illegal, shows them to be obnoxious to the objection made, and should be re-executed, asking no question suggestive of the answer, nor any about which there is higher and better evidence. The conclusion of a witness is not the way to prove a fact, and questions seeking to prove a conclusion should be avoided or ruled out.

3. The third ground of error is the suppressing the interrogatories of witness, Gordon, because of the presence of the plaintiff when they were executed. Under §3884 of the Code they were properly rejected.

4. The last question made by the record is as to the error of the'judge in awarding a non-suit. The testimony shows that the plaintiff was charged upon the affidavit of the defendant with cheating and swindling; that he was arrested under a criminal warrant; held for preliminary trial; was tried and discharged, the evidence showing that he was not the man who got the goods, the defendant testifying that the affidavit which he had made for the plaintiff’s arrest was true, and making other statements as to the false representations of the plaintiff to him touching this transaction. It is true that it also appeared that the defendant had been advised by an attorney at law that the warrant would lie, but even if the whole proceeding had been without malice and with probable cause in the opinion of the judge, yet he should have sent it to the jury for them to pass upon it, and by their verdict to say whether that was true or not.

Judgment reversed.