O.C.G.A. § 51-7-45 (2019)
Evidence in determination of probable cause
For consideration of the existence of probable cause, the evidence given during the criminal prosecution by the person accused of the malicious prosecution may be submitted to the jury by either party. The credibility of such evidence shall be determined by the jury.
History
(Orig. Code 1863, § 2926; Code 1868, § 2933; Code 1873, § 2984; Code 1882, § 2984; Civil Code 1895, § 3845; Civil Code 1910, § 4441; Code 1933, § 105-803.)
Annotations
JUDICIAL DECISIONS In action for damages for malicious prosecution, the prosecutor may show that the prosecutor really acted in good faith in instituting and carrying on the prosecution, and that the prosecutor believed, although mistakenly, that the accused was really guilty. Good faith may be shown by the circumstances of the transaction, and want of probable cause exists when the circumstances are such as to satisfy a reasonable man that the prosecutor had no ground for proceeding but for one’s desire to injure the accused. Hearn v. Batchelor, 47 Ga. App. 213, 170 S.E. 203 (1933). In suit for damages for alleged malicious prosecution, evidence will be closely scrutinized, and if it appears from that testimony which is uncontra-
dicted, and which is neither incredible, impossible, or inherently improbable, that there were sufficient facts before the prosecutor in carrying on the prosecution, which would warrant a conclusion by the prosecutor, as a reasonable man, that the plaintiff was guilty of the offense charged, a verdict for the plaintiff will not be allowed to stand. South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 182 S.E. 61 (1935). Advice of solicitor general (now attorney general) is no defense to suit for malicious prosecution unless the advice is given after a full, fair, and complete statement by the prosecutor of all the facts known to the prosecutor. Hearn v. Batchelor, 47 Ga. App. 213, 170 S.E. 203 (1933).
RESEARCH REFERENCES Am. Jur. 2d. - 52 Am. Jur. 2d, Malicious Prosecution, § 139 et seq. C.J.S. - 54 C.J.S., Malicious Prosecution, § 29 et seq. ALR. - Admissibility in action for ma-
licious prosecution of zeal and activity by defendant in pushing prosecution, 49 ALR 265. Status, character, competency, or personal interest of attorney as affecting rule
regarding advice of counsel in action for malicious prosecution, 81 ALR 516. Malicious prosecution: possession of stolen property as probable cause, 172 ALR 1340.
Probable cause or want thereof, in malicious prosecution action, as question of law for court or of fact for jury, 87 ALR2d 183.