Appellee declared in three counts: (1) For an assault and battery; (2) for false imprisonment; and (3) malicious prosecution. Defendant, appellant, had the general charge as to count 2, and the cause was submitted to the jury on counts 1 and 3.
In the first place it is insisted that defendant was entitled to the general affirmative instruction which was requested in separate charges upon the case as a whole, and upon each of counts 1 and 3. The corresponding assignments of error are grouped together in appellant's brief, but the supporting argument is addressed to the case as made by the court for malicious *Page 587 prosecution. It is evident that defendant was not entitled to the general charge as to the first count, for, while defendant or its agents would have had a right to use such force as may have been necessary to detain plaintiff until an officer could be called — if defendant was justified in charging her with larceny from its stock of goods — defendant's agents had no right to do more. Plaintiff's testimony was that defendant's agent, who preferred the charge against her, attempted to put his hand in her pocket, at the time charging her with lying as well as stealing. If this version of the facts was accepted by the jury as true, plaintiff proved a case under count 1, whatever may have been its conclusion as to count 3. As for the last-mentioned count, the argument is that the prosecution was ordered by Rice, president of the defendant corporation, upon facts which had been observed by the witness Chambless, and had been by him communicated to Rice. But the bill of exceptions fails to show that Chambless informed Rice of the immediately pertinent facts, so that the issue as to probable cause rested upon the evidence as to what had in fact occurred, not upon what Rice had been told, and, the evidence as to that being in conflict, was due for submission, in the first place at least, to the jury for decision.
Charge 60, requested by defendant, was properly refused because it laid stress upon the fact that plaintiff had been convicted in the recorder's court of the offense for which defendant had caused her to be prosecuted. This was the proper subject of the jury's consideration in connection with all relevant facts in evidence, but this charge called particular attention to the fact of plaintiff's conviction, singled it out, without the proper qualification. Sandlin v. Anders,187 Ala. 474, 65 So. 376. We would feel more confidence in the result under consideration if we knew that the jury had in mind the fact that the conviction of plaintiff in the recorder's court made out a prima facie case for defendant. Ewing v. Sanford, 19 Ala. 605; Veid v. Roberts, 200 Ala. 576,76 So. 934. It may well be considered that the subsequent verdict of acquittal weighed too heavily in the mind of the jury. That verdict was due to be considered, was essential to plaintiff's recovery, as going to show that the prosecution against plaintiff had been determined in her favor; but her acquittal did not tend to show a want of probable cause for believing her guilty of the offense charged, the reason being, as pointed out in Fowlkes v. Lewis, 10 Ala. App. 543, 65 So. 724, and repeated in Standard Oil v. Davis, 208 Ala. 568, 95 So. 754, that an acquittal is based upon a reasonable doubt of the defendant's guilt, whereas probable cause for preferring a charge is based upon a reasonable belief growing out of such information as may be available to the accuser at the time; that is, whether the accuser had a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in the belief that the person charged is guilty. We apprehend that in every case of this character the jury should be advised of these principles and differences. But the charge in question did not go to these propositions as a whole; it singled out the fact of plaintiff's conviction as we have stated, and this court has always held that charges faulty in that respect are properly refused.
Charge 62, requested by defendant, correctly states the policy of the law (O'Neal v. McKinna, 116 Ala. 618, 22 So. 905) and its statement to the jury may have been very useful to defendant in the circumstances of this case, but, in substance, the jury were so instructed in the court's general oral charge, and the court here is unwilling to hold its refusal for reversible error.
Charge 4, refused to defendant, was faulty for the reason that it predicated a verdict for defendant upon consideration of the issues made under count 3 without regard to what the jury may have believed in respect of the case stated in count one.
Charge 59, refused to defendant, would have made the case turn upon the jury's finding as to a collateral and not necessarily conclusive issue. It was entirely proper for the jury to consider the fact, if it was a fact, that plaintiff had prevaricated in accounting for the possession of goods which defendant contended she had stolen — a very potent fact tending to induce the conclusion that plaintiff had stolen the goods, but still not conclusive. The charge was refused without error.
Charge 2, refused to defendant, like charge 4 to which we have referred, omitted consideration of the evidence tending to support the case alleged in count one.
Charges 25, 36, 37, 38, and 40, grouped in the brief with charge 2, are all open to criticism which would justify the court in refusing them, but they are not discussed in appellant's brief and nothing more needs be said of them.
The only objection urged against the action of the trial court in overruling defendant's motion for a new trial is that the damages assessed were excessive, and for that reason the motion should have been granted. If the jury really believed that defendant had preferred a baseless charge of larceny against plaintiff and thereby had caused her to be lodged in the county jail, though for but a short time, and to undergo the expense, humiliation, and distress of two public trials for that offense, we cannot say that the damages assessed were so excessive *Page 588 as to indicate prejudice, partiality, or corruption on the part of the jury.
The judgment must be affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.