Best v. Hoeffner

39 Mo. App. 682 | Mo. Ct. App. | 1890

Thompson, J.,

delivered tbe opinion of tbe court.

This is an action for damages for the malicious prosecution of a criminal action. The plaintiff bad a verdict and judgment, and the defendant, appealing, assigns for error that the court erred in rejecting competent evidence offered by him, and that the court should have given an instruction in the nature of a demurrer to the evidence.

I. The criminal prosecution by the defendant against the plaintiff was for the larceny of a hundred-dollar bill. The first assignment of error relates to the exclusion of questions put to a witness, tending to elicit answers to the effect that some one presented himself at the bar of the witness, who was a saloon keeper, asking him to change a one-hundred-dollar bill. This question, and others of a similar character to the same witness, was properly ruled out, because they were not framed so as to show that the person alluded to was the plaintiff, or a person who looked like the plaintiff. It is possible that the defendant’s counsel may have intended to lead up to that fact; but, if so, he should either have put an appropriate question tending to elicit such an answer, or else he should have made a distinct tender of evidence to that effect. It is a well-settled rule of procedure that, in order to put a trial court in the wrong for ruling out a question or a tender of evidence, the question or the tender of evidence must be framed in such a manner as to show its materiality. Aull Savings Bank v. Aull's Adm'r, 80 Mo. 199; Jackson v. Hardin, 83 Mo. 175, 187.

II. The other assignment of error is that the court should have sustained a demurrer to the evidence because the criminal prosecution was void, in that the information was based upon the affidavit of a private person (to-wit, the defendant) merely. This assignment of error is distinctly answered by the decision of the supreme court in Stocking v. Howard, 73 Mo. 25.

Judgment affirmed.

All the judges concur.