dissenting.
I respectfully dissent from the majority’s judgment reversing the trial court’s denial of defendant’s motion for judgment notwithstanding the verdict in plaintiff Harold Wilkerson’s successful action for malicious arrest against his former employer. “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80. In addition to the facts recited by the majority, I note that plaintiff was informed by the personnel manager, Wes Weston, that plaintiff would be demoted and have his pay reduced after an altercation with his co-employee, Todd Edwards. This disciplinary action was taken despite Wes Weston’s belief that “Todd had provoked [plaintiff], and he instigated it[.]” Plaintiff’s outrage at this perceived injustice reflects on the meaning to be attached to any words he subsequently uttered in anger to (or in the presence of) co-defendant Dwight Clay. At trial, plaintiff denied threatening anyone. The jury was thus authorized to believe that any mention of the gun in plaintiff’s truck was a histrionic reference to suicide, not terroristic threats directed at anyone else.
Dwight Clay’s testimony before the magistrate resulted in the issuance of a warrant for plaintiff’s arrest for a simple assault committed against Wes Weston. According to the facts recited in the warrant, Dwight Clay told the magistrate that plaintiff said to him (Dwight Clay) that he (plaintiff) “had a gun in his truck and had [a] good mind to get it [and] use it[; that] revenge was his and that in 6 hours, days or months he would use it[; that] he knew where Wes Weston lived [and] might ‘get his wife’ while Wes was at work.” This warrant is thus based solely upon plaintiff’s conversation with Dwight Clay and not upon any word or act committed in the presence of the *715purported victim, Wes Weston. In my view, this evidence utterly fails, as a matter of law, to establish probable cause to believe that Wes Weston was placed in a reasonable apprehension of receiving any imminent bodily injury, based upon plaintiffs apparent present capacity to inflict such injury. See, e.g., Johnson v. State, 158 Ga. App. 432, 433 (280 SE2d 856); OCGA § 16-5-20 (a) (2). The magistrate in the case sub judice erred in issuing a warrant for simple assault based upon this evidence, and the erroneous issuance of that warrant eliminates it as a prima facie case of probable cause. The total lack of probable cause is a circumstance from which the jury may infer malice. OCGA § 51-7-44; Auld v. Colonial Stores, 76 Ga. App. 329, 337 (3) (45 SE2d 827).
Moreover, the absence of probable cause is not the only evidence of malice in the case sub judice. Although Dwight Clay denied that the anti-union sentiments of Northern Telecom, Inc. played any role in his decision to seek a warrant, this presented a credibility question for the jury. Plaintiff and his wife presented uncontradicted evidence of Northern Telecom’s strong anti-union corporate culture. Northern Telecom made it “very adamant they did not want a union.” When he was a supervisor, plaintiff was expected to be a snitch with respect to pro-union employees. In my view, this is sufficient independent evidence of malice to support the jury’s determination that plaintiff’s arrest was ordered by defendant’s agents with that “general disregard of the right and consideration of mankind, or a portion of society,” directed against the plaintiff. Auld v. Colonial Stores, 76 Ga. App. 329, 337 (3), supra. Certainly, we cannot hold this evidence of Northern Telecom’s corporate culture is wholly irrelevant, as a matter of law, to its collective decision in swearing out an arrest warrant for perceived threats uttered outside the presence of the purported victims. It is an old and sound rule that this Court will not speculate as to what evidence the jury chose to believe. See generally Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510). “A jury should not be precluded from putting two and two together[.]” Southern R. Co. v. Newman, 187 Ga. 132 (1), 133 (199 SE 753). Moreover, in determining whether that independent evidence of malice afforded a sufficient nexus to the issuance of an arrest warrant without probable cause, “ ‘[a] jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration.’ Sappington v. Bell, 115 Ga. 856 (1) (42 SE 233).” Reaves v. Columbus Elec. &c. Co., 32 Ga. App. 140, 151 (122 SE 824). It is my view, however, that the majority strays from the relevant and permissible appellate inquiry and improperly speculates on which type of evidence of malice the jury in the case *716sub judice found credible. “The Court of Appeals shall be a court of review. . . .” Art. VI, Sec. V, Par. III, Ga. Const. of 1983. “ ‘This court has repeatedly ruled that in the absence of legal error, it has no jurisdiction to interfere with a verdict supported by some evidence, although the verdict was against the preponderance of the evidence. The decisions ... to the contrary . . were rendered prior to the constitutional amendment restricting the jurisdiction of [the Supreme Court of Georgia] and this court to the decision of errors of law and equity, and are not now in point.’ Wilson v. Barnard, 10 Ga. App. 98 (8) (72 SE 943).” Black v. Duncan, 79 Ga. App. 342 (53 SE2d 726). Since, in the case sub judice, there is evidence of malice beyond the total lack of probable cause, the juxtaposition of “direct” versus “circumstantial” evidence of malice arising solely from the absence of probable cause is simply inapposite and the majority’s reliance on Mayor &c. of Savannah v. Wilson, 214 Ga. App. 170, 172 (4) (447 SE2d 124) is misplaced. We are unauthorized to disturb this verdict on the grounds urged by defendant, and so I respectfully dissent from the judgment of reversal as the trial court was correct and should be affirmed.
Decided December 4, 1995 Reconsideration denied December 20, 1995 Long, Aldridge & Norman, Phillip A. Bradley, Harold N. Hill, Jr., R. Daniel Beale, for appellant. Smith, Howard & Ajax, Bruce H. Beerman, Thomas & McDonald, Diana Y. McDonald-Burks, Walter H. Hotz, for appellee.I am authorized to state that Presiding Judge Pope, Judge Blackburn, and Judge Ruffin join in this dissent.