dissenting.
I respectfully dissent and would hold that, on the state of the record at this stage, plaintiffs are entitled to a trial.
1. Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987) is not controlling in the circumstances of this litigation on the claim of malicious prosecution. One of the elements of this cause of action is that the criminal prosecution by defendant was without probable cause. OCGA § 51-7-40; J. C. Penney Co., Inc. v. Miller, 182 Ga. App. 64, 66 (2) (354 SE2d 682) (1987). As quoted in Monroe, supra at 760, plaintiff must show “ ‘that under the facts as they appeared to the prosecutor at the time of the prosecution, . . . the defendant . . . could have no reasonable grounds for believing the plaintiff to be guilty of the charge brought.’ ” OCGA § 51-7-43 defines it: “Lack of probable cause 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.” The Code section goes on to instruct: “Lack of probable cause shall be a question for the jury, under the direction of the court.”
In Monroe, the Supreme Court answered affirmatively “whether a judicial determination of probable cause made in the course of a criminal prosecution can establish, as a matter of law and for pur*108poses of summary judgment, the existence of probable cause in the civil action for malicious prosecution.” According to the Supreme Court’s analysis, the reason the judicial determination serves to negate a later civil claim of lack of probable cause is that if a judge considers the evidence sufficient to support a jury’s conclusion of guilt beyond a reasonable doubt, it certainly reaches the lesser quantum needed to support probable cause. In the civil context, reasonable men and women on the jury would have to decide whether the preponderating evidence is that a reasonable man or woman under the circumstances of the case before them could have had, at the time of the prosecution, no reasonable grounds for believing plaintiffs to be guilty of the criminal charge brought. Monroe, supra at 760. In Monroe, the significance of the action of the trial court was buttressed by the separate determinations of two magistrates, a factor absent here.
In the instant case, the trials for criminal trespass (knowingly and without authority remaining on the premises of another after notice to depart, OCGA § 16-7-21 (b) (3)) were before the court without a jury. Thus there was no proper motion for directed verdict, as the law does not provide for such in a bench trial because a verdict is the decision of a jury. Smith v. General Motors Acceptance Corp., 98 Ga. App. 840, 841-842 (107 SE2d 334) (1959); see American Appraisal Co. v. Whitley Construction Co., 126 Ga. App. 398, 399 (190 SE2d 838) (1972). Only since 1971 has the law of Georgia again recognized motions for directed verdict in criminal cases. Ga. L. 1971, p. 460 (OCGA § 17-9-1, as amended Ga. L. 1982, p. 3). It was in demise for a period prior to that. See Pritchard v. State, 224 Ga. 776, 779 (2) (164 SE2d 808) (1968); Allen v. State, 228 Ga. 859, 860 (2) (188 SE2d 793) (1972). The appeal in State v. White, 145 Ga. App. 730 (244 SE2d 579) (1978), cited by the majority, was dismissed inasmuch as the state has no right to appeal from a judgment of acquittal which, rightly or wrongly, the trial court had entered because the state failed and refused to put on any evidence.
Nor could the motion have been treated as a motion for involuntary dismissal so as to have accomplished the defendants’ goal in what was a jury-less trial, because the law provides for such only in civil cases. OCGA § 9-11-41 (b); State v. Cooperman, 147 Ga. App. 556, 558 (2) (249 SE2d 358) (1978).
The legally noncognizable motion would be “no more than a request that the court find in the movant’s favor,” Smith, supra at 842. In a criminal case this would properly be done by choosing not to put up any evidence after the State rested. The judgment would then be based both on the law and the facts, American Appraisal Co., supra at 399, whereas the verdict is only “ ‘a declaration of the truth as to the matters of fact submitted to the jury.’ ” Smith, supra at 841. *109There is no mechanism for the defendant to test the sufficiency of the State’s evidence in a criminal bench trial before electing whether to submit defense evidence.
The question remains whether the Monroe rationale applies to the criminal trial judge’s action in this case. That is, was his so-called denial of acquittal on motion after the State’s evidence was presented based on a judicial determination that the evidence was sufficient to support a finding of guilt beyond a reasonable doubt? The answer is “no.”
The focus of the argument and the court’s explanation related to the elements of criminal trespass as it had been charged. The court was uncertain, because of the lack of legal precedent, whether the two movie patrons who were in the theater with their purchased tickets, which tickets contained no express reservation of right to eject, had a legal right to remain despite the owner’s demand that they leave because of conduct which allegedly occurred before entry. It was asserted that they broke in line outside the theater.
The court noted that they were not charged with entering after receiving notice that entry was forbidden, which is prohibited by subsection (2), but only with violation of subsection (3). The court indicated that if the patrons had a legal right to remain, they obviously could not be guilty of criminal trespass for refusing to leave.
Thus it was the unresolved legal question of whether the contract to see the movie on the premises, which contract was evidenced by the movie tickets, gave the patrons the right to refuse to obey the demand that they depart, which prompted the court to deny the motion for acquittal. The denial of the motion, then, does not conclusively establish that there was a judicial determination that the movie theater owner and employee had probable cause to believe, at the time they prosecuted, that the patrons had committed criminal trespass when they refused to depart. The court acknowledged its uncertainty concerning whether criminal trespass was precluded as a matter of law because of the tickets and that part of the evidence which was undisputed, so there was no foundation upon which a firm determination of sufficient evidence to support a finding of guilt or even probable cause could be made.
This crucial distinction differs this case from even the logic of Monroe v. Sigler and further makes its rule inapplicable. The judge could not have concluded that there was sufficient evidence “to enable a rational trier of fact to find each and every element of the guilt of the accused beyond a reasonable doubt,” Griffin v. Georgia Power Co., 186 Ga. App. 565, 566 (1) (367 SE2d 832) (1988), because he was unsure of the legal ramifications of the accused trespassers’ contract.
As to the other elements, the civil case defendants concede that the criminal prosecution was ultimately terminated in plaintiffs’ *110favor, and there was some evidence of malice as that is set out in Melton v. LaCalamito, 158 Ga. App. 820 (282 SE2d 393) (1981). The criminal trial judge even commented on the courtroom demeanor of the theater’s agent and had to express his dissatisfaction with his conduct during trial.
Decided December 5, 1989 Rehearing denied December 20, 1989 Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Jeffrey G. Casurella, for appellants. R. Chris Irwin & Associates, R. Chris Irwin, Leslie H. Claxton, for appellees.2. There being questions of fact and law regarding whether plaintiffs had committed criminal trespass when they were arrested in the theater and handcuffed with their hands behind their backs and thereby restrained, summary judgment is premature on the claim of false imprisonment. OCGA § 51-7-20. Defendants have not shown as a matter of law, by undisputed facts, that it was lawful to detain the patrons from viewing the movie and arrest them. This is their burden. OCGA § 9-11-56; Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673 (307 SE2d 134) (1983).
3. It has not been established as a matter of law that there was no unlawful touching which would be actionable as a battery. New-some v. Cooper-Wiss, Inc., 179 Ga. App. 670, 672 (1) (347 SE2d 619) (1986). The security guard frisked the male patron, led him by the arm, and handcuffed him as well as his pregnant wife. Whether this was justified touching or the use of excessive force is a jury question. See Thompson v. Shelverton, 131 Ga. 714 (63 SE 220) (1908).
4. There being no reference to record or transcript pages indicating that appellees raised, or the court ruled on, a statute of limitation defense, see Rule 15 (c) (3), the parties’ final arguments present nothing for this court to rule on.
I am authorized to state that Judge Benham joins in this dissent.