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July 25, 1957


The opinion of the court was delivered by: Taylor, Justice.

   July 25, 1957.
This appeal arises out of an action for malicious prosecution brought in the Court of Common Pleas for Greenville County, resulting in a verdict for $7,000.00 actual damages and $3,000.00 punitive damages.

At approximately 11:30 a. m., on or about January 29, 1955, the respondent, his wife and sister, all elderly people in the neighborhood of seventy years of age, visited appellant's large supermarket for the purpose of shopping, the ladies for the purpose of selecting groceries and respondent some canned dog food and coffee. In the proximity of the dog food was the coffee display, approximately one step away. Appellant's manager testified that he observed respondent, clad in a top coat, as he was interested in some instant coffee and after inspecting several kinds, select a jar of one of the well-known brands, walk to the rear of the store, across the back and up the other side to the front again and across the front to where the coffee and dog food were located, all the while carrying the coffee in his hand. He placed the coffee in his pocket, selected an empty box and proceeded to place one dozen cans of dog food, weighing sixteen ounces each, in the box. He then entered the line of customers at one of the cash registers and paid for the dog food but not the coffee. As he left the store, he had taken three or four steps, when he was stopped by appellant's manager and assistant manager and asked if he had something in his pocket for which he had not paid. Respondent did not at first understand and inquired of the manager what he had said. Upon the inquiry being repeated, he felt his pocket and promptly stated that he had a jar of coffee and wished to pay for it. This offer was refused, and appellant's manager ordered respondent to accompany him through the store to the stockroom in the rear, which he did, offering again to pay for the coffee, asserting that he was innocent of any intention to take it without paying therefor. He was ordered to remain in the stockroom with the assistant manager and other employees until two city policemen arrived. Appellant's manager stated to the policemen what had happened and asked that he "be taken in."

Respondent, who does not drive, had the keys to the car in his pocket and was accompanied by the policemen into the store in order to turn the keys over to the sister, who, along with his wife, had been in the store all the while. Learning of the difficulty, she demanded an explanation, but the manager refused to discuss the matter and tersely referred her to the police. The sister testified, "I tried to get an explanation and I couldn't. I asked Mr. Burry (the manager) and he wouldn't talk to me. He seemed to me so mad he didn't know what to do." Respondent was then carried to the City Jail where he was booked on a charge of "shoplifting" and placed in a cell where he remained approximately a half hour before his sister was able to arrange bail. Thereafter, respondent was tried by a jury in the Municipal Court and found not guilty.

Upon trial of the cause from which this appeal stems, the question of what offense respondent had been charged, tried and acquitted became a matter of concern as the Municipal Court is not a Court of record. Appellant took the position that inasmuch as there is no Ordinance in the City of Greenville making "shoplifting" a crime, the warrant did not state a criminal offense had been committed. The Assistant City Attorney who represented the City in the prosecution and the officer who filed the charges were placed upon the stand, and they testified that respondent "was tried for taking a jar of coffee from the Dixie Home Store without paying for same" and acquitted. Introduced into the evidence was Section 24-58 of the Greenville City Code, which appears as follows:

"No person shall steal, take, carry away, or take possession of with intent to steal or carry away, any article of goods, choses in action, bank bills, bills receivable, of any article of personalty, or which, by law, larceny may be committed, or fixtures and parts of the soil as were severed from the freehold by an unlawful act."

Proceedings in a Municipal Court are of a summary nature and must follow the practice prescribed for Magistrates' Court in South Carolina. Section 15-901, Code of Laws of South Carolina, 1952. City of Greenville v. Latimer, 80 S.C. 92, 61 S.E. 224; State v. Langford, 223 S.C. 20, 73 S.E.2d 854.

Respondent sets forth in his complaint that appellant did "cause, procure, instigate and initiate the issuance of an Order or warrant of arrest against said Plaintiff charging him with the criminal offense of `shoplifting' and/or `larceny,' * * *." In order to sustain an action for malicious prosecution, one must first be charged with the commission of a crime and exonerated, Segusky v. Williams, 89 S.C. 414, 71 S.E. 971, 36 L.R.A., N.S., 230; Aiken v. Lancaster Cotton Mills, 85 S.C. 180, 67 S.E. 166; Whaley v. Lawton, 57 S.C. 256, 35 S.E. 558; Frierson v. Hewitt, 2 Hill 499; Keels v. City of Sumter, 95 S.C. 203 78 S.E. 893; see also, Annotations, 36 A.L.R.2d 786.

While the word shoplifting does not appear in the Ordinances of Greenville, Webster's definition of shoplifter is: "One who steals from a shop goods exposed for sale"; and shoplifting as: "Act or practice of a shoplifter." Respondent contends that while the word shoplifting does not appear in the City Ordinances, the question was raised at the time of trial and that inasmuch as shoplifting involves the crime of larceny, respondent was tried under the aforementioned section of the Code which makes larceny a crime; and this is substantiated by the testimony of the Assistant City Attorney and the officer who signed the warrant.

The Municipal Court of Greenville, not being a Court of record, does not require technical precision in its preparation of warrants so long as they set forth plainly and substantially the crime charged. The word shoplifting inserted in the warrant could have left no doubt in respondent's or any one else's mind that he was "tried for taking a jar of coffee from the Dixie Home Store without paying for same," under Section 24-58, heretofore referred to. McCall v. Alexander, 81 S.C. 131, 61 S.E. 1106; Duffie v. Edwards, 185 S.C. 91, 193 S.E. 211. Certainly appellant's manager so understood at the time as he lent his efforts towards bringing about a conviction as will be referred to hereafter.

Appellant next contends that the trial Court erred in submitting the issue of probable cause to the jury. While actions for malicious prosecution may be maintained in the courts, they have never been regarded with favor and are not encouraged as it is in the interest of good order that criminals be brought to justice; and it is generally held that the prosecutor is free from damage if there be probable cause for the accusation made, the burden being upon the plaintiff to show the absence of probable cause as a part of the cause of action, Fulmer v. Harmon, 3 Strob. 576; Hogg v. Pinckney, 16 S.C. 387, see also, 6 South Carolina Law Quarterly 375-376.

By probable cause is meant the extent of such facts and circumstances as would excite the belief in a reasonable mind acting on the facts within the knowledge of the prosecutor that the person charged was guilty of a crime for which he has been charged, and only those facts and circumstances which were or should have been known to the prosecutor at the time he instituted the prosecution should be considered. Brown v. Bailey, 215 S.C. 175, 54 S.E.2d 769; China v. Seaboard Air Line Ry., 107 S.C. 179, 92 S.E. 335.

"Similarly, it is essentially a matter for the jury, under proper instructions of the court, to pass on the sufficiency of the facts and circumstances relied on by the plaintiff to show lack of probable cause for the prosecution of the criminal action. Speaking to this very point, Mr. Justice McIver said: `* * * We think the true rule is, that after the jury have been instructed as to what constitutes probable cause, as matter of law, it is for them to say, from a review of all the facts and circumstances proved to have been present to the mind of the prosecutor at the time he commenced the prosecution, or to the plaintiff at the time he commenced his civil action, whether there was or was not probable cause for such proceeding. This rule is, as we have seen, not without the support of authority, is easy of application, and is in analogy with the rule in cases of negligence, which like probable cause presents a mixed question of law and fact.' Caldwell v. Bennett, 22 S.C. 1." Jennings v. Clearwater Mfg. Co., 171 S.C. 498, 172 S.E. 870, 872.

"Both in the lower court and in this court the defendants have urged that the plaintiff failed to meet the burden of proof imposed on him to prove the elements of (1) malice, (2) want of probable cause, and (3) the termination of the prosecution favorable to him, upon which his right of recovery rested.

"In the consideration of actions seeking to recover damages for malicious prosecutions, it is to be remembered that, while individuals are to protected against rash and baseless prosecutions, the public interests demand that courts shall not frown upon honest efforts made in attempts to bring the guilty to justice, and the juries, who try actions for malicious prosecutions, should ever keep these principles in mind. In every case of this character there necessarily arises a duty, sometimes a most difficult one, ...

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