concurring specially.
1. I agree that appellees Ingram and Dunn, the officers who arrested the appellant on the original charge of “disorderly while intoxicated,” were entitled to summary judgment on the appellant’s false arrest claim arising from that incident; however, I reach that conclusion by a different route from that traveled by the majority.
The majority concludes that Ingram and Dunn were entitled to summary judgment because the appellant failed to present evidence “of the actual spiteful type of malice and lack of probable cause that must be present to support an action for ‘false arrest’ under § 51-7-1 et seq. ...” I cannot agree that there is a special “spiteful kind of malice” which must be proven in false arrest actions, as opposed, presumably, to a lesser, non-spiteful kind of malice which will suffice in other types of actions in which proof of malice is required. Furthermore, I believe the majority’s analysis improperly shifts to the appellant the burden of proving his case on motion for summary judgment. The appellant unequivocally averred in his affidavit that he had been neither drunk nor disorderly at the time of his arrest. If that is true, then the officers obviously had no cause to arrest him on the charge of disorderly while intoxicated; and under OCGA § 51-7-44 the absence *49of such cause is a circumstance from which malice could be inferred.1 While the appellant’s credibility on this issue is certainly open to question, it is axiomatic that “the trial court cannot in considering summary judgment weigh the evidence or determine its credibility.” State Farm Fire &c. Co. v. Martin, 174 Ga. App. 308, 309 (329 SE2d 577) (1985). Accord Ash v. Spear, 137 Ga. App. 12, 13 (223 SE2d 26) (1975). See also Miller v. Douglas, 235 Ga. 222, 223 (219 SE2d 144) (1975). Furthermore, OCGA § 51-7-3 specifically states that “[l]ack of probable cause shall be a question for the jury. ...”
I would hold that Ingram and Dunn were entitled to summary judgment on the false arrest claim not because of the appellant’s failure to establish the existence of a material factual conflict with regard to his conduct and condition on the night in question but because it is apparent without dispute from the record that there has never been any formal disposition of the charge for which they arrested him. “To recover in tort for either malicious prosecution or malicious [or false] arrest, the [plaintiff has] the burden of showing that the prior criminal proceeding, whatever its extent, ha[s] terminated in [his] favor.” McCord v. Jones, 168 Ga. App. 891, 892 (311 SE2d 209) (1983). Accord Smith v. Embry, 103 Ga. App. 375, 379-81 (119 SE2d 45) (1961). Although the more serious charge of attempted escape which was later filed against the appellant was nolle prossed for lack of evidence after being transferred to state court, the disposition of that charge clearly did not constitute an adjudication that no evidence existed to support the original charge of disorderly while intoxicated. Thus, I would hold that appellees Ingram and Dunn were entitled to summary judgment on the false arrest claim “on the ground that no [such] cause of action had yet accrued.” McCord v. Jones, supra, 168 Ga. App. at 893.
2. In false imprisonment cases, “it is not necessary to show malice and want of probable cause, but only that the imprisonment was unlawful.” Collins v. Sadlo, 167 Ga. App. 317, 318 (306 SE2d 390) (1983). Where, on the other hand, recovery is sought against a police officer for effecting an unlawful arrest without a warrant, proof of malice and want of probable cause clearly is required; and the cause of action therefore is for false arrest rather than for false imprisonment. See generally OCGA § 51-7-1; Smith v. Embry, 103 Ga. App. 375, 378 (3) (119 SE2d 45) (1961). There being no question that Ingram and Dunn were acting in their official capacity as police officers *50in arresting the appellant, I accordingly agree that the appellant has no cause of action against them for false imprisonment.
Decided June 6, 1990 Rehearing denied June 21, 1990 — Cert, applied for. James N. Finkelstein, for appellant. Landau & Davis, Al Grieshaber, Jr., James V. Davis, for appellees.3. I concur fully in the remainder of the majority opinion.
While this Code section appears in the portion of Title 51 dealing with malicious prosecution actions, there is no reason why it would not also apply to false arrest actions. Cf. McCord v. Jones, 168 Ga. App. 891, 892 (311 SE2d 209) (1983) (holding that “[m]alicious prosecution and malicious arrest differ only in that malicious prosecution contains the additional element of showing that a prosecution was carried on”).