180 Mich. 548 | Mich. | 1914
This is an action for malicious prosecution involving a judgment against defendant for six cents damages and equal costs, brought here by defendant for review on a writ of error for the purpose, as we are informed, of maintaining his right, as a citizen willing to vindicate the law and assist the suppression of crime in discharge of his duty to society, to protection from annoying litigation resulting from such public service.
Plaintiff and defendant were formerly friends and copartners in the business of spraying orchards in Shiawassee county, but differences arose between them which resulted in their ceasing to prosecute the business after some time in February, 1912, though they were unable at that time to satisfactorily adjust their partnership affairs and fully dissolve such rela
“It was 14 months before the warrant was sworn out. I said to Shellenbarger, T believe I am sick, coming down with the gripand I says, T have got to do something for this or I won’t be able to go any further;’ so I says, ‘I believe I will send and get a gallon of whisky and see if I can’t break up my cold.’ Mr. Shellenbarger says to me, he says, T believe I have got the same thing;’ and he says, ‘While you are sending, get some for me.’ I says: ‘Mr. Shellenbarger, I am going to get a gallon, and I don’t need it all. If you want some and you order it, why I will get it for you.’ So he asked me what it was, and I told him it was $3.20 per gallon, or-five quarts; there was one quart thrown in free. I told him I would figure in that quart just the same as I paid for it/ He said ‘You send and get one quart bottle for me/ and offered to pay me. It was so awful cold my hands were frozen stiff. My coat was buttoned up. And I says to Shellenbarger, ‘Never mind, I will advance the money for you, and you can pay me some other time/ He says, ‘Very well/ ”
That the “Golden Gift” was procured from Kentucky and possessed special medicinal properties is
After the estrangement of these parties and their inability to settle their partnership affairs became acute, it is claimed by Hickey that Shellenbarger, who was an athlete and had manifested his prowess while on the police force in the city of Toledo, commenced a course of intimidation towards the former both by physical demonstrations and by threatening to make him trouble on account of his having procured and furnished liquor to others in violation of law. Different witnesses testified to such threats and physical violence by Shellenbarger, at one time reaching a point where he grabbed Hickey by the throat and choked him. A settlement of their business matters was reached about a year after they ceased doing business, under circumstances which did not altogether relieve their strained relations.
In the fall of 1912 Shellenbarger became a candidate for sheriff of Shiawassee county on the Progressive ticket, and Hickey does not appear to have been favorably disposed to his candidacy. During the campaign each insinuated that the other had been guilty' of violating the local option law, and threats of prosecution were made in that connection.
On February 27, 1913, Shellenbarger made an affidavit before Gustav F. Friegel, a justice of the peace, charging Hickey with selling deponent one quart of whisky in the city of Owosso on the 21st of April, 1912, receiving therefor the sum of 60 cents. Upon this a complaint was sworn to by a deputy sheriff, and a warrant issued charging Hickey with violation of the local option law. An examination had before said justice resulted in the discharge of Hickey; the justice finding that there was no probable cause to suspect
To entitle plaintiff to recover in this action for malicious prosecution, these three things must concur and be established by a preponderance of the evidence: That the prosecution was begun and came to a legal termination in plaintiff’s favor; that defendant instituted it without probable cause; and that in doing so he was actuated by malicious motives.
It is undisputed that the prosecution was instituted on the strength of an affidavit made by defendant, and that it has ended favorably to plaintiff, resulting in his discharge.
The question of malice calls for little consideration. It is always exclusively for the jury when there is any evidence in the case tending to establish it.
“It may be proved by direct evidence, or it may be inferred from circumstances.” Hamilton v. Smith, 39 Mich. 223.
The record in this case contains both direct and circumstantial evidence, consisting of acts of violence, threats, and expressions of ill will, with facts and cir
Complaint is made that it was not, in the particular that the court sustained an objection to admission of the testimony of certain witnesses taken at the examination before the magistrate in the criminal prosecution on account of which this action was brought; counsel for defendant stating its purpose was to show that plaintiff’s discharge was wrongful and a miscarriage of justice. No claim was made that any of the witnesses at that examination were dead or for other reasons not available. It was undisputed that there was an affidavit by defendant, a complaint, warrant, and arrest of complainant, followed by an examination before the magistrate and discharge of plaintiff, legally terminating the case. The prosecution did not end on technical grounds but after examination of witnesses and an adjudication by the court. The details and reasons of the court for such decision were immaterial. The court rightly held that the discharge of plaintiff was only admissible and material to show the prosecution was terminated, and what evidence the magistrate had before him to govern his official action, or what he may have thought, was immaterial. Defendant was permitted to go fully into all the original facts and circumstances bearing on plaintiff’s guilt and introduce whatever testimony he desired as to his knowledge, motives, the occasion for and circumstances of his making the affidavit.
It is urged that the circumstances under which the affidavit was made by defendant indicate that he acted in good faith and without malice, because he is shown to have made the affidavit at the solicitation of one Goodwin, who testified that he was looking after “bootlegging” in an effort to bring offenders in that particular to justice, and that a deputy sheriff, who heard defendant knew of certain facts implicating
The claim that a verdict should have been directed in defendant’s favor for the reason that plaintiff admitted facts which show he is guilty of violating the local option law is not tenable. His testimony, on cross-examination, which it is claimed was such an admission, related to an entirely distinct transaction
Defendant requested the court to “instruct the jury that the discharge at the examination is not evidence of probable cause.” This the court did not give, and manifestly should not have given in the form presented, but did in effect, we think, instruct the jury that the discharge was not to be considered as evidence of want of probable cause, distinctly charging them that it was admitted solely for the purpose of proving the one essential fact that the prosecution was terminated in the discharge of defendant, and what the justice may have thought in so doing was not for the jury to consider, emphasizing at length the rule putting the burden of proof upon plaintiff to establish, by a preponderance of evidence, that defendant was not only actuated by malice but had no reasonable ground or probable cause to think plaintiff guilty, and that plaintiff could not recover “if he has not done that to the satisfaction of the jury, by a preponderance of the evidence.” We think the charge of the court as an entirety was correct, and very clearly stated to the jury the principles of law involved, and under the law their duty in relation to
No reversible error is found in the record, and the .judgment is affirmed.