Griffin v. Georgia Power Company

367 S.E.2d 832, 186 Ga. App. 565, 1988 Ga. App. LEXIS 409

• Court: Court of Appeals of Georgia
• Decided: March 11, 1988
• Docket: 75082
• Status: Published

Opinions

Carley, Judge.

The facts, insofar as they are relevant to this appeal, are as follows: Appellee-defendant Roy L. Minter, acting on behalf of his employer, appellee-defendant Georgia Power Company, swore out a warrant for the arrest of appellant-plaintiff on a charge of theft of electrical services. Appellant was thereafter prosecuted on this criminal charge. At the trial of the criminal action, appellant moved for a directed verdict of acquittal at the close of the State’s evidence. The undisputed evidence of record is that this motion was denied, the only contention to the contrary being based upon material which is dehors the record. Likewise, the undisputed evidence of record is that appellant’s renewed motion for a directed verdict of acquittal, which he made at the close of all of the evidence, was granted. The criminal prosecution having thus been terminated in his favor, appellant subsequently instituted this malicious prosecution action against appellees. Appellees moved for summary judgment and the trial court granted their motion. Appellant appeals from the order granting summary judgment in favor of appellees.

1. “The overriding question in actions for malicious prosecution is not whether the plaintiff was guilty [of the criminal offense], but whether the defendant had reasonable cause to so believe — whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution. . . . This burden is not carried in any reasonable sense unless the plaintiff [can show] that under the facts as they appeared to the prosecutor at the time of the prosecution, that the defendant could have had no reasonable grounds for believing the plaintiff to be guilty of the charge brought. [Cit.] ” Fisher v. Ky. Fried Chicken, 175 Ga. App. 542, 545 (333 SE2d 877) (1985). As noted, the undisputed evidence of record is that, in the underlying prosecution for theft of electrical services, the trial court denied appellant’s motion for a directed verdict of acquittal made at the close of the State’s case. In Monroe v. Sigler, 256 Ga. 759, 760-761 (4, 6) (353 SE2d 23) (1987) our Supreme Court held: “Having heard all the evidence that the [State] had to present, the trial court was called upon to examine the sufficiency of the evidence to sustain a conviction. In denying the motion, the court found the evidence sufficient to authorize a jury to determine guilt beyond a reasonable doubt. That quantum of evidence is substantially greater than mere probable cause. Such being the case, does the trial court’s denial of a motion for a directed verdict of acquittal constitute a binding determination of the existence of probable cause? We answer in the affirmative. . . . When the trial judge, having heard all of the [S]tate’s evidence, considers a motion on behalf of an accused (the accused being present and given an opportunity to be heard in support of the motion); and when the trial judge rules that the evidence is sufficient as a matter of law to support a conviction (that is, is sufficient to enable a rational trier of fact to find each and every element of the guilt of the accused beyond a reasonable doubt), we can see no reason why such a holding — unreversed and in the absence of fraud or corruption — should not suffice as to the existence of probable cause. [Cits.]” (Emphasis in original.)

Accordingly, if Monroe v. Sigler, supra, is controlling authority, the probable cause for appellant’s criminal prosecution has been established by the denial of his motion for a directed verdict of acquittal which he made at the close of the State’s evidence. Monroe v. Sigler, supra, certainly is factually distinguishable. In that case, only one motion for a directed verdict of acquittal was made and, as the result of its denial, it was the jury that made the ultimate determination of whether the evidence authorized a criminal conviction. Here, two motions for a directed verdict of acquittal were made and, as the result of the grant of the second motion, it was the trial court that made the ultimate determination of whether the evidence was sufficient to authorize appellant’s conviction. Accordingly, the issue to be resolved is whether this factual distinction is sufficient to remove the present case from the ambit of the holding of Monroe v. Sigler, supra.

Notwithstanding the noted factual differences, it is undisputed that here, as in Monroe v. Sigler, supra, a motion for a directed verdict of acquittal was made and denied at the close of the State’s evidence. A trial court cannot choose to deny a meritorious motion for a directed verdict of acquittal made at the close of the State’s case. “[I]t constitutes reversible error for the trial court to refuse to direct a verdict of acquittal where there is absolutely no conflict in the evidence and the verdict of acquittal is demanded as a matter of law. [Cit.]” Bethay v. State, 235 Ga. 371, 373-374 (1) (219 SE2d 743) (1975). See also Bethay v. State, supra and Walls v. State, 161 Ga. App. 625, 626 (1) (288 SE2d 769) (1982), holding that an appellate court will consider all of the evidence, including that introduced by the defendant, in determining whether the denial of a motion for a directed verdict of acquittal at the close of the State’s evidence was error.

Accordingly, the unreversed denial of appellant’s motion for a directed verdict of acquittal at the close of the State’s evidence establishes that the facts, as they then appeared, were “sufficient to authorize a jury to determine guilt beyond a reasonable doubt. That quantum of evidence is substantially greater than mere probable cause. . . . [Thus,] the trial court’s denial of a motion for a directed verdict of acquittal constitute [s] a binding determination of the existence of probable cause. . . .” Monroe v. Sigler, supra at 760-761 (4). That the criminal defendant may subsequently have been acquitted — whether by grant of a motion for a directed verdict of acquittal or by the verdict of the jury — establishes only that at the close of all of the evidence, the facts, as they then appeared, were not sufficient to authorize a jury to determine guilt beyond a reasonable doubt. Since any subsequent determination as to a defendant’s guilt made at the close of all of the evidence is not inconsistent with any previous determination made at the close of the State’s evidence, it would necessarily follow that any finding which was implicit in the trial court’s denial of appellant’s initial motion for a directed verdict of acquittal would not be obviated by the trial court’s grant of appellant’s second motion. Implicit in the denial of appellant’s initial motion for a directed verdict of acquittal was the trial court’s determination of the existence of probable cause for the prosecution. Monroe v. Sigler, supra. This determination is unreversed and is binding. The grant of appellant’s subsequent motion for a directed verdict of acquittal establishes only that the criminal prosecution terminated in his favor. “[T]he existence of probable cause has been established, during the trial of the criminal case, in such manner as to preclude [appellant’s] action for malicious prosecution.” Monroe v. Sigler, supra at 761 (7). It follows that the trial court did not err in granting appellees’ motion for summary judgment.

2. Appellant’s remaining contentions are moot and need not be addressed.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., and Pope, J., concur. Banke, P. J., Sognier, Benham and Beasley, JJ., dissent.