55 Iowa 140 | Iowa | 1880
— I. The defendant filed an information before a ’justice of the peace charging plaintiff with the crime of petit larceny, committed by stealing from defendant certain articles of personal property of the. value of five dollars. A warrant was issued and plaintiff was arrested, thereon. Upon a trial before the justice he was discharged. Plaintiff alleges in his petition that defendant instituted the prosecution maliciously and without probable canse, and seelis to recover damages therefor.
Men do not institute unfounded prosecutions of their friends, and we can hardly suppose a case where a trivial prosecution of this character would be commenced unless an ill-feeling existed between the parties. And it must be admitted that in most if not all cases where malicious prosecutions without probable cause are instituted they are prompted by feelings of hostility and enmity. The evidence in question tends to show hostility and unfriendly feeling entertained by defendant toward plaintiff, which it would be proper, for the jury to consider in determining the cmimus of defendant in instituting the prosecution. The court did not err in admitting the evidence.
We confess that, upon these points, the evidence hardly satisfies our minds, but we are clear that there is not such an absence of evidence thereon as to. justify us in reversing 'the judgment. The rules that govern us in such a case are familiar and of almost daily application.
There is evidence tending to show the hostility and enmity of defendant toward the plaintiff. The defendant had also expressed an opinion unfavorable to plaintiff’s honesty, and had intimated that he was guilty of other crimes of the character of the one charged in the information. This evidence, in connection with other testimony offered at the trial, tends
III. It is also insisted that the evidence shows the defendant had probable cause to institute the prosecution. This position is based upon testimony showing that the defendant consulted an attorney, who, upon statements made -by defendant and a witness, advised the prosecution. But the jury may have found, upon evidence tending to establish the fact, that an understanding existed between defendant and the witness to injure plaintiff by the prosecution. The witness had a lawsuit with plaintiff, and was on unfriendly terms with him, all of which was well known, to defendant. This witness did not testify in this case, and the absence of his testimony was not accounted -for by defendant. Upon this testimony the jury may have found that notwithstanding the advice of the attorney defendant knew that there was no probable cause for the prosecution.
The foregoing discussion disposes of all points presented in the argument of defendant’s counsel. The judgment of the Circuit Court must be
Appirmed,