59 Mo. App. 92 | Mo. Ct. App. | 1894
The count in the petition on which this cause was tried alleged, in substance, that defendant, with malice and without probable cause, procured the issuance of a warrant for the arrest of plaintiff by making an affidavit to an information charging him with stealing, on the seventeenth day of August, 1892, a calf belonging to 'defendant, of the value of $40; that plaintiff was thereupon examined under said information, and held to give bond in the sum of eight hundred (800) dollars to answer any charge or indictment which should be found by the grand jury; that on the twenty-fifth day of October, 1892, plaintiff was indicted by a competent grand jury, upon the false
Upon the trial of the issues thus made, plaintiff offered in evidence the records of the court of criminal correction of the city of St. Louis, showing an information filed by the assistant prosecuting attorney of said court, based on the affidavit of defendant, charging plaintiff with stealing one calf belonging to defendant, of the value of $10, and the capias for plaintiff’s arrest issued thereunder, together with the return of the sheriff showing the bringing of plaintiff before the judge of the St. Louis court of criminal correction, and the judgment of that court after a full examination, requiring plaintiff to enter into bond in the sum of eight hundred (800)‘dollars for his appearance before the St. Louis criminal court to answer said charge. Plaintiff then introduced the records of the St. Louis criminal court showing the finding of an indictment against him for the offense alleged in said information, his trial thereunder and acquittal by a verdict of the jury. ■
Plaintiff’s testimony was, in 'substance, that he was hauling a load of sod on his wagon about 2:30, on August 17, 1892; that with him were a colored man named Shelton, and son, and a white man; that, when they approached McRae and Gfrand avenues, Shelton remarked: “Here comes a crazy calf;” that witness looked around, having to stop the horse anyway, on account of the s.teep grade, but did not see the calf; that at this point_ the weeds were about five or six feet
The foregoing was substantially the testimony of plaintiff and his witnesses. On the other hand the ,evi
The jury .returned a verdict for the plaintiff for three hundred and fifty (350) dollars actual damages, and one cent exemplary damages. Prom the judgment thereon this appeal is taken.
To maintain an action for malicious prosecution, it must be shown that the prosecution was malicious and without probable cause, and has ended. Sharpe v. Johnson, 76 Mo. 660. “Probable cause consists of a belief in the charge or facts alleged, based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence in the same situation.” Boeger v. Langenberg, 97 Mo. 390.
The finding of an indictment against a party, or his commitment by an examining magistrate, is prima facie evidence of probable cause. Sharpe v. Johnson, supra; Vansickle v. Brown, 68 Mo. 627; Peck v. Chouteau, 91 Mo. 138; Staley v. Turner, 21 Mo. App. 244. This prima facie evidence may be rebutted or overthrown by evidence, that such indictment or commitment was obtained by false or fraudulent testimony or other improper means; or that the prosecutor, notwithstanding the action of the grand jury or the
In order to justify the finding of the jury on this issue, it must appear by some substantial evidence, either that defendant did not himself believe plaintiff to be guilty as charged in the indictment; or that the facts and circumstances, communicated to defendant, as to the actions of plaintiff in the capture of the calf, were insufficient to induce such belief in a person of ordinary prudence in the same situation. The first proposition could only be established by some admissions of defendant, which it is not claimed were made; on the contrary he testified that he did believe plaintiff to be guilty. The second proposition is equally without support in the record. No substantial evidence was offered which tends to show that the facts and circumstances attending the transaction in question, as they were testified to by defendant’s witnesses and reported to him by his daughter and hired man, were insufficient to reasonably induce belief in plaintiff’s guilt by a person of ordinary prudence in the same situation. On the contrary these facts and circumstances, when presented to the grand jury, resulted in
Since the prima facie presumption of probable cause afforded by evidence of the indictment and commitment has not been negatived or rebutted by -any substantial evidence in this record, the plaintiff has not discharged the burden of proof resting upon him, and the court erred in refusing- defendant’s instruction, at the end of the trial, in the nature of a demurrer to the evidence. For this reason the judgment must be reversed. This case has been twice tried, and we can not assume that the learned counsel have failed to ascertain all the facts obtainable. As these are wholly insufficient to sustain the verdict, it will not be remanded.