80 P. 327 | Ariz. | 1905
This is an action for damages for malicious prosecution. The complaint alleges, in substance, that the defendants maliciously and without probable cause lodged a complaint with a justice of the peace charging the plaintiff with a felony, in the larceny of certain articles; that a warrant was issued thereunder, and plaintiff was arrested, arraigned on the charge, and held by the justice to await the action of the grand jury; that the grand jury refused and declined to present an indictment, and dismissed the charge, and the prosecution was thereby terminated; and further alleges general and specific damages. The answer of the defendants Wildman and Roberts specially denies any connection with the charge, and contains a general denial of all the allegations of the complaint. The answer of the remaining defendants admits the residence of the parties and the co-partnership of the defendants, and denies specifically certain .allegations of the complaint, and generally all allegations except those expressly admitted in the answer as above stated. Upon the trial the plaintiff gave testimony which related to her arrest, the complaint lodged against her, and the action of the justice of the peace in binding her over to await the action of the grand jury. She testified that she did not steal the articles. She was asked if she knew what was the result before the grand jury, but the question was not answered;
The principal question raised by the assignments of error is whether the trial court was right in holding that proof showing malice and the absence of probable cause for her arrest was necessary, to enable the plaintiff to sustain the action. While it is true that malice may be inferred from the facts which go to make the proof of want of probable cause, it is incumbent on the plaintiff in an action for malicious prosecution to show, at least prima facie, want of probable cause. Counsel for the appellant contends that the pleadings and evidence show that the grand jury dismissed the charge, and he claims that this is sufficient evidence of want of probable cause. This we do not need to determine, for the record does not bear out the contention of the appellant. It was directly put in issue by the averments of the complaint and the denials of the answers that the grand jury had dismissed the charge; but no proof of this was introduced by the plaintiff, or any other evidence given either of malice, or of want of probable cause from which malice might properly have been inferred. On the contrary, as the case stood when judgment was taken, not only was there no evidence of want of probable cause, but the showing of the existence of probable cause, established prima facie by the action of the committing magistrate, had in no way been controverted. There is nothing in the evidence to show what action the grand jury took, or that the proceedings begun before the committing magistrate were terminated in favor of the plaintiff, and, indeed, nothing to. show that they were terminated at all, except that the plaintiff, in response to a question by her counsel after the question as to what action the grand jury had taken had been excluded, testified that no further steps in the prosecution had been taken against her. The
The appellant contends that the court should have permitted the plaintiff to put in her proof as to damages sustained, and then other witnesses could have been examined to prove want of probable cause and malice. An inspection of the record shows, however, that no such application was made to the court, or that counsel made any suggestion that the defect in the proof might be supplied later, or intended to make such proof. In any event, the order of proof was a matter within the discretion of the trial court, and such court might very properly refuse to go into the question of damages until the proof necessary to sustain such damages had been adduced.
The judgment of the district court is affirmed.