39 Mo. 39 | Mo. | 1866
delivered the opinion of the court.
This was an action for malicious prosecution instituted by Casperson against Sproule in the St. Louis Circuit Court. The substance of the petition was that the defendant had falsely, maliciously, and without any reasonable and proba
At the conclusion of the testimony introduced on the part of the plaintiff, the following instruction was asked on the part of the defendant, which was given by the court, viz.: — “The defendant moves the court to instruct the jury, that, on the evidence, the plaintiff cannot recover.”
The verdict of the jury was in conformity to the instruction of the court, and, after taking the proper steps for that purpose, the case is brought here by appeal.
Some objection is made to the ruling of the Circuit Court in relation ,to the admission and exclusion of testimony offered by plaintiff, but the main question for consideration here is as to the propriety of the instruction given. The proper determination of this question necessarily requires a careful examination of the testimony preserved in the bill of exceptions.
To support this action, two tilings must appear affirmatively : 1st, malice upon the part of the prosecutor ; and 2d, the want of probable cause for the prosecution.
Malice is a condition of the mind, which may be shown by direct proof of. its existence like any other fact in the case, or it may be legally inferred from other facts proved. And it was held in this court both in the case of Hickman v. Grif
Malice and want of probable cause are not interchangeable terms, but separate and distinct ingredients necessary to support the action; and there must be affirmative proof tending to show the want of probable cause before the defendant can be called upon for his defence. Upon the application of these principles to the case at bar, the question arises, was there sufficient testimony to require the opinion of the jury in order to a correct determination of the case ? We think there was. Without going into the consideration of all the evidence, it will be sufficient to notice that portion which refers to the efforts of Sproule to have an indictment preferred against Casperson by the grand jury and the ignoring of the bill. The fact is shown that Casperson was recognized to appear before the Criminal Court of St. Louis to answer to -the charge preferred against him by Sproule. The testimony of Mr. Yastine, the assistant circuit attorney at that time for the county of St. Louis, shows that at the proper term Sproule appeared voluntarily before the grand jury and tried “ to have Mr. Casperson indicted for embezzlement”; “ that the grand jury refused to indict Mr. Casperson for embezzlement-or any other crime, and ignored and threw out the bill, and that no other or further steps were taken to indict Casperson,” &c. In the case of Brant v. Higgins, 10 Mo. 728, Judge Napton, in delivering the opinion of the court, said, “the verdict of a jury upon the trial of a civil action is essentially different from the discharge of a supposed criminal by the examining magistrate, or upon a bill of indictment ignored by a grand-jury. Even in a criminal proceeding, the final acquittal of the accused can have but little weight as evidence of probable cause compared with an acquittal or discharge before the magistrate or grand jury. The magistrate and grand jury have the very question of probable cause to try; and the evidence on the side of the
The estimate put upon that character of evidence is not too high, and in this case it was sufficient, we think, to require the defendant to produce his defence.
The other judges concurring, the judgment of the Circuit Court will be reversed and the cause remanded for further trial.
