39 Neb. 313 | Neb. | 1894
Kennedy recovered a judgment against Jonasen for $500 and costs for malicious prosecution. This judgment Jonasen seeks to reverse. The action grew out of the follow
The plaintiff asked the following instruction, which was refused:
“If the jury believe from the evidence that Assistant County Attorney Shea was made acquainted with all of the facts affecting the question of the guilt of the plaintiff in this case which were known by the defendant in this action at the time the complaint was filed, and that after being made so acquainted with the material facts, the assistant county attorney drew the complaint which was afterwards sworn to by the defendant in this action upon the advice of said attorney, the presumption of malice is rebutted and the action for malicious prosecution will fail, and you will find for the defendant.”
In order that the defendant in an action for malicious prosecution may be protected from liability because of following the advice of counsel, it must be made to appear
The court charged the jury as follows: ■
“ The mere fact that the defendant had lost a diamond ring by theft, and that he suspected or believed that the ring which he found in plaintiff’s possession was the ring which he had lost, was not of itself sufficient to constitute probable cause for the arrest of the plaintiff for the theft of the ring, and if he, the defendant, caused the arrest of the plaintiff for the larceny of the ring, based upon such belief only, he, the defendant, assumed the responsibility*318 of being able to support his belief by proof of the fact that the ring found in plaintiff’s possession was the identical ring which was stolen from the defendant, and if he could not produce sufficient testimony to establish that fact, and if, in addition thereto, he had no reasonable ground to believe that the plaintiff was the one who had stolen his (defendant’s) ring, then the defendant had no probable cause for the arrest of the plaintiff for the larceny of the ring.”
This instruction was correct. The plaintiff in error places too narrow a construction upon it. He construes it as conflicting with the rule that the possession of property shown to. have been recently stolen is sufficient evidence to support a charge of larceny against the person having possession. The rule referred to states an inference of fact rather than of law; in other words, that the jury may find a prisoner guilty of larceny upon such evidence, but is not required to do so. And it is only permitted to so base a verdict of guilty where the property is found in the possession of the defendant recently after its theft. (Thompson v. People, 4 Neb., 524; Smith v. State, 17 Neb., 358.) In this case it was not shown when the ring had been stolen from Jonasen. It was shown affirmatively that Kennedy was not the person in Jonasen’s store when the ring was stolen, and the rule referred to is, therefore, not applicable to the ease. The instruction was that it was not sufficient, in order to make out a case of probable cause, that Jonasen should have lost the ring by theft and that he should suspect or believe that the ring in the plaintiff’s possession was his; and, in effect, the remainder of the instruction was that in order to constitute probable cause defendant must have been able to produce sufficient testimony to identify the ring as his, and also have reasonable ground to believe that Kennedy had stolen it. It was a correct statement of the law. The identity of the ring was a fact particularly within Jonasen’s knowledge, and no mere suspicion or
Another instruction given by the court was as follows:
“ (Probable cause ’ is defined to be a reasonable ground for suspicion supported by circumstances sufficiently strong to warrant an impartial and reasonably cautious person in the belief that the person accused is guilty of the crime with which he is charged. If, therefore, you believe from all the testimony that there was reasonable ground for suspicion against the plaintiff, supported by such facts and .circumstances as would have led an impartial and reasonably cautious man to believe that the plaintiff was guilty of the crime with which he was charged by the defendant, then you will be justified in saying that there was probable cause for the arrest of the plaintiff upon the complaint made by the defendant against him; otherwise, not.”
It is urged that this instruction left the jury to determine the question of probable cause. There is no doubt that it is the duty of the court to say what facts constitute want of probable cause, and it is for the jury to determine whether such facts exist. But there are two reasons why the judgment should not be reversed on account of this instruction. The first is that at the request of the defendant himself the court gave the following instruction :
“ The jury are instructed that if you believe from the evidence, that defendant had probable cause for instituting the criminal proceedings, then the plaintiff cannot*320 recover in this suit. ‘Probable cause’ is defined to be reasonable ground for suspicion, supported by circumstances sufficiently strong to warrant an impartial and reasonably cautious man in the belief that'the person accused is guilty of the offense of which he is charged.”
This is substantially like the one of which the defendant complains. A party cannot be heard to urge that an instruction is erroneous when he hintself requested the giving of that instruction, or one similar in substance. Another reason is that the instruction was not erroneous. By it the court correctly defined the rule in regard to. probable cause. (Turner v. O’Brien, 5 Neb., 542; Ross v. Langworthy, 13 Neb., 492.) The court in other instructions had told the jury what facts, if found by them to be true upon the evidence in the case, would establish a want of probable cause. In Dreyfus v. Aul, supra, relied upon by plaintiff in error upon this point, the court merely told the jury generally that it should find for the plaintiff if it found that the prosecution was commenced without probable cause, and in none of the instructions informed the jury what would constitute probable cause. That case is, therefore, not in point. It was not erroneous to tell the jury in general terms what the law meant by a “want of probable cause” when such instruction was accompanied by other instructions as to what facts would constitute want of probable cause in the case on trial.
The first instruction given by the court is complained of. This instruction was as follows :
“ The court instructs the jury that if they believe from the evidence that the defendant maliciously caused the arrest and imprisonment of the plaintiff without probable cause, as alleged in the petition, then the jury should find for the plaintiff and assess his damages at what they think proper from the facts and circumstances proved, not exceeding, however, the amount claimed in the petition.”
The same objection is urged to this, — that it left to the
The court refused the following instruction asked by defendant :
“The jury are instructed that in determining whether the defendant had probable'cause to believe that the plaintiff was guilty they should consider that question in reference to the facts and circumstances relating thereto, and which influenced him in commencing proceedings against the plaintiff, as they were known or as they really appeared to be at the time he made the complaint, and not upon facts and circumstances as they have been developed by the evidence on this trial.”
This instruction stated a correct principle of law, and the court might perhaps have given it without error, but there is no evidence in the record tending to show any information coming to Jonasen after he made the complaint which would throw a new light upon the question of Kennedy’s guilt or innocence, and all of the instructions given by the court clearly enough confined the jury to a consideration of the facts within Jonasen’s knowledge at the time the complaint was made. .
During the examination of Jonasen the following question was asked: “ Did you swear to that complaint with any malice towards Mr. Kennedy?” This question was objected to and the objection was sustained. It has been .held in this state that where the issue is whether a transfer of property was made with intent to hinder, delay, or defraud creditors, it is proper to ask the assignor or vendor whether in making the transfer he did so with such intent. (Campbell v. Holland, 22 Neb., 587.) If such an inquiry is proper we see no reason why a direct inquiry as to
Q,. Had you ever known Mr. Kennedy before?
A. I never saw him.
Q,. Had you any other motives in filing that complaint than to charge a crime against a person whom you supposed had committed it?
A. No, sir; I am no hater of the man. I could not have the least object in holding a stranger that I did not know.
Q,. You say that you had never seen Mr. Kennedy before that?
A. I never saw him before I saw him at the police station, that I know of.
By this examination the defendant got all the benefit that he could have had from a direct answer to.the question, and the exclusion of the particular question objected to was not prejudicial.
Judgment affirmed.