Canter v. Harris , 17 Ala. App. 132 ( 1918 )

BBOWN, P. J.

It is not controverted that the inferior court of Ensley, of which the defendant was judge at the time of the act complained of, had jurisdiction concurrent with the circuit court of the offense denounced by section 6217 of the Code, the offense sought to be charged by the affidavit made before the defendant. Acts 1915, p. 825, § 2.

We have but to apply what was said in Broom v. Douglass, to determine that the affidavit in question was a “colorable invocation of jurisdiction,” and it appearing without dispute that the defendant acted without corruption or bad faith, he is not liable.

“By a ‘colorable cause,’ or a ‘colorable invocation of jurisdiction,’ as applied to cases like the instant one, we understand and mean that some person, apparently qualified to do so, has appeared before the justice and made complaint under oath and in writing, stating at least some fact or facts which enter into and may, under some condition,, or in co-operation with some other unstated fact or facts, constitute a criminal offense, or stating some fact or facts which bear some general similitude to a fact or facts designated by law as constituting an offense, in either case calling upon the justice to pass upon their sufficiency to elicit the process issued. * * * Applying, now, the rule of liability above stated to the facts in the present case, we are of opinion that the affidavit made before defendant as a justice of the peace, though wholly insufficient to charge any criminal offense, or to justify the issuance of a warrant of arrest, nevertheless was clearly an attempt to charge a threatened criminal trespass on affiant’s land. And, stating facts which were elements of that offense, and of 'legal significance and value in its proof, a colorable case was presented which fairly invoked the justice’s judgment as to their -sufficiency for the purpose intended. The issuance of the warrant was therefore a judicial act, involving his inquiry and affirmative conclusion as to his power and authority to do so, for which he cannot be held liable, if he acted in good faith.” Broom v. Douglass, 175 Ala. 268, 57 South. 860, 44 L. R. A. (N. S.) 164, Ann. Cas. 1914C, 1155; Blancett v. Wimberley, 16 Ala. App. 402, 78 South. 318.

On the facts presented by the record, here, the defendant was entitled to the affirmative charge, and the court properly granted the motion for new trial.

Affirmed.