58 Kan. 402 | Kan. | 1897
This was a suit for malicious prosecution, brought by the defendant in error against the plaintiff in error. Only one question needs to be specially noticed. On the trial of the case the court, over defendant’s objections, received in evidence the find
This ruling and this instruction were erroneous. In the case of Sweeney v. Perney, 40 Kan. 102, it was-held:
“On the trial of an action for malicious prosecution, it is not error for the trial court to refuse to permit to be read in evidence that part of the verdict and judgment in the criminal case, for the institution and the prosecution of which this action is brought, that finds and adjudges that the complaint was malicious and without probable cause; and that the name of the prosecuting witness was the name of the defendant in the action for malicious prosecution; and adjudges him to pay the costá.”
Counsel for the defendant in error attempts to distinguish the present case from the earlier one, and observes that the earlier case “ was a trial before a jury, and not an examination. In that case, before the jury could convict, the guilt of the accused must be proved beyond a reasonable doubt; while in this case all the magistrate had to do was to-find, not the guilt of the party, but whether there was probable cause to believe-him guilty.” True, the original case out of which Sweeney v. Perney grew was a trial for misdemeanor, and not a preliminary examination on a charge of felony ; but in that case it was not the verdict of acquittal based upon the rule of “reasonable doubt” which had been offered in evidence. What was offered in that-
The prosecuting witness was not, in the sense of being bound to the defendant by the record of the proceedings, a party to the criminal action instituted by him. Legally speaking, he and the defendant were strangers to that record. True, in the case of In re Ebenhack (17 Kan. 618), it was held that, under the statute (Gen. Stat. 1889, ¶"5451), the prosecuting witness made himself so far a party to the case in which his complaint was filed as that costs and imprisonment could be imposed upon him for a malicious prosecution ; but he was a party only as to the State, and in respect to a matter of concern between himself and it. He and the State were litigating the questions of malice and probable cause to -determine which should pay the costs of the proceeding. The statute made the questions of malice and probable cause issues auxiliary and incidental to the main case, with the view to a conclusion upon the question of costs. This, however, does not make the prosecuting witness and the defendant parties to the record, in the sense in which estoppels against them arise out of it.