80 Wis. 98 | Wis. | 1891
This action is brought by the plaintiff against the defendants for malicious prosecution in making and
The .jury found a verdict for the plaintiff of $5,000; and it may as well be said here, in answer to the last point made in the brief of the learned counsel of the appellants, that we think the verdict was warranted by the testimony, and is not excessive in amount. The testimony is very voluminous, and there is no occasion for reviewing or making any , statement of it on any question going to the merits of the -case, and we shall therefore confine ourselves to the assignments of error.
1. It seems that the adultery charged was mainly located . at the place and on the occasion of a certain picnic at the house of the witness Charles Woelfer, in the town of Deer-field, about the 1st of September, 1886, and the said witness was asked as to the plaintiff’s conduct, situation, and circumstances while at and about said picnic, in order to show that she was not guilty of the act charged, at least on that occasion. The offer of this testimony was objected to by the learned counsel of the appellants, on the ground
2. The witness Charles Woelfer testified that the plaintiff was at the picnic, and at one time she was in a tobacco-shed while it rained, with others; and her husband, John Sickles, came in and spoke to her. The witness was then asked by the plaintiff’s counsel: “ What did he say to her? ” This was objected to by the defendants’ counsel. The court ruled that the plaintiff’s counsel “may show what took place, there.’^ This ruling was excepted to by the defendants’ counsel.. This must have been understood to mean what took place between the plaintiff and others, with a view of showing that nothing improper took place, so far as the plaintiff was concerned, as the court had already ruled that the transactions at the picnic were proper to be shown with that view. It follows, therefore, that the court virtually sustained the objection to the question asked, and suggested the proper question: “ What took
3. The court instructed the jury that “ the judgment of the justice discharging the plaintiff on the examination is prima facie evidence of want of probable cause, but it is not conclusive on the subject, and you. are to determine the question, considering that fact and all the other evidence bearing on the question,” etc. This is assigned as error. The learned counsel of the appellants contend that, although it is proper to introduce the judgment to show the end of the prosecution as a condition precedent to the action, yet it ought not to be used to their disadvantage in the action, in violation of the maxim res inter alios acta alteri nocere non debet, as it was in a-proceeding between the state and the plaintiff, in which the defendants were neither parties in fact nor in interest or privies, and should therefore not be used as evidence in a civil action between themselves and the' plaintiffs to prove any issuable fact against them, such as a want of probable cause for instituting the prosecution.
The rule of this most venerable and useful maxim cannot have full application to a prosecution before an examining magistrate in this state. ‘ The defendant in this suit was the sole complainant who set the prosecution on foot against the plaintiff, and who had the right to produce the witnesses, and the issue was “ probable cause for charging the prisoner with the offense; ” and the judgment of discharge is based upon a “ want of probable cause; ” and, if “ the complaint was wilful and malicious and without probable cause,” the justice may “ enter judgment against the complainant for all the costs of the proceeding, including witness fees.” Sec. 4191, R. S. The defendant could scarcely be treated as a stranger to that proceeding and judgment. The justice may adjudicate the same issues that are involved in this case, — ' wilful and malicious prosecution with
But we think that the authorities preponderate, in favor of the introduction of the judgment of discharge, both as evidence that the proceedings were ended, and as prima facie evidence of a want of probable cause. Most of the cases cited by the learned counsel of the appellants were of trials and acquittals, and therefore not in point. The briefs on both sides on this question are especially able, learned, and exhaustive. The most creditable elementary works agree upon the proposition that “the discharge of the plaintiff by the examining magistrate is prima facie evidence of the wrant of probable cause, sufficient to throw upon the defendant the burden of proving the contrary.” 2 G-reenl. Ev. § 455; Cooley, Torts, 184; 1 Am. Lead. Cas. 268. The following authorities cited in respondent’s brief
It is unnecessary to review the authorities cited in appellants’ brief. Some of them sustain the contention of the learned counsel of the appellants, that the judgment of discharge of the plaintiff by the examining magistrate is not even prima facie evidence of want of probable cause; but we cannot concur in' the reasons given. One of the reasons given is that there is no solemnity, certainty, or conclusiveness of such a judgment of an ordinary justice, who is likely to be ignorant or prejudiced. The law presumes the justice both capable and honest, and his judgment in such a case is as conclusive as that of any other court within his jurisdiction. It would hardly do to test the conclusiveness of the judgments of other courts by the same rule of criticism of the judges.
We must hold, therefore, that the above instruction of th e court to the jury, that “ the judgment of the justice discharging the plaintiff on the examination is prima facie evidence of want of probable cause,” was correct, and is sustained by reason and the better authorities.
By the Court.— The judgment of the circuit court is affirmed.