61 Neb. 249 | Neb. | 1901
This is an error proceeding from a judgment of the district court of Douglas county in an action wherein Mrs. Lotta Halstead was plaintiff and Jens Jensen was defendant. Jensen had caused the arrest of Mrs. Hal-stead on a charge of malicious destruction of property, of which charge she had, on trial, been acquitted. She thereupon brought an action against him for malicious prosecution, in which she was successful. Some sixteen alleged errors, out of the remarkable number of thirty-eight assigned, are insisted upon in the brief of counsel. These, however, can be grouped under more general heads, thus obviating the tediousness of referring to each separately. Several of the alleged errors go to the question of whether there is evidence in the record from which the jury could find that in bringing the criminal prosecution Jensen was actuated by malice, or whether there was on his part want of probable cause. Counsel cite the court to the evidence of the defendant to establish the fact that the jury were not justified in finding there was either malice or probable cause. Unfortunately for counsel, the testimony of plaintiff and defendant was contradictory in many material particulars, We have
Defendant pleaded as a defense to the cause of action of plaintiff that before instituting the criminal prosecution he had disclosed all the material facts to his counsel, and acted on his advice in bringing the same. Upon the stand he testified to what he stated to his counsel. It is contended that this constituted a defense to the present action, and that the jury should have found for the defendant. If they believed the statements of defendant and his counsel to have been the facts in the case, the jury certainly should have found in his favor. Unfortunately for him again, what he claimed to be the material facts, detailed to his counsel, failed to agree with those
Error is further predicated upon the ruling of the court sustaining an objection to the following' question put to defendant by his counsel: “Q. I will now ask you, Mr. Jensen, if, when you went to the office of your attorney on the second day of July, before this complaint was filed, if you detailed to him all of the facts and circumstances so far as you' knew or were able to learn at that time with reference to this matter?” The objection Avas that the question called for a conclusion. This ruling was proper. The conclusion called for was a A-er-y material one, wholly within the proAdnce of the jury, whose duty it was to infer this conclusion, or its opposite, from the evidence. It is argued that, although he had already stated Avhat he had communicated to his counsel, an answer to this question was necessary in order to establish the fact that he had detailed to him all the facts that were at that time within his knowledge. Doubtless a question which sought to draw from him a statement that what he had told his counsel was all that he knew at the time of the communication might have been proper, as it would not have involved the objectionable part of the question propounded. However that may be, the question actually put was certainly properly excluded by the court.
Several errors are predicated upon instructions given by the court; among them the following instruction is duly excepted to and the giving of it urged in the brief as error: “The information that will justify the making of a criminal complaint against another for the purpose
Numerous other objections are raised to the instructions, which it is unnecesary to notice.
For the reasons stated the judgment of the lower court is reversed.
Reversed and remanded.