97 Va. 43 | Va. | 1899
delivered the opinion of the court.
On the 8th of April, 1897, A. O. Jones sued out a warrant of arrest, in the city of Newport News, charging that J. O. Morris of the city of Richmond in the said city “ did unlawfully, $40 in current money of the United States of the goods and chattels of the said A. O. Jones, of the value of $40, take, steal and carry away.” Upon this warrant Morris was arrested on the 10th of April of the same year; was, by the justice before whom the warrant was returnable, committed to a policeman of the city of Richmond, and was by the latter carried to the said city, and, on the 12th of April, upon trial before the Police Justice of the said city, acquitted and discharged. Thereupon Monis instituted a suit against Jones for malicious prosecution, and upon the trial the jury found a verdict in favor of the plaintiff for $1,500, which is before us upon a writ of error sued out by the defendant.
The first error assigned is that the defendant’s demurrer to the plaintiff’s declaration and to each count thereof, should have been sustained.
The second assignment of error is to the action of the court in not excluding from the consideration of the jury the warrant offered in evidence, on which the plaintiff was tried in the Police Oourt of the city of Richmond, and also all evidence relating to the trial referred to in bill of exception No. 1.
These two assignments of error may be considered together. The point presented for consideration is as follows:
Morris was arrested upon a warrant sued out by a Justice of the Peace of the city of Newport News, charging him with an offence committed in the city of Richmond. When he was brought before the justice who issued the warrant it was his duty, under section 3959 of the Code, to commit the accused by warrant to an officer “ who shall by virtue thereof carry him to the county or corporation in which the trial should be, and
Mow the contention of the plaintiff in error is that inasmuch as no warrant was issued by the justice in Mewport Mews, authorizing the conveyance of the prisoner to the city of Richmond for trial, the Police Justice of the last mentioned city acquired no jurisdiction over the accused, and the offence alleged tó have been committed by him; that the proceedings before the Justice in Richmond were wholly without jurisdiction, the judgment rendered by him a nullity, the prosecution instituted not as yet finally ended, and therefore an essential requisite to an action for malicious prosecution absent in this case. It may be conceded for the sake of argument, and to that extent only does the court commit itself, that Morris had the right to challenge the authority of the officer by whom he was taken from Mewport Mews to Richmond for trial; that in the absence of a warrant, such as is provided for in section 3959, he was unlawfully deprived of his liberty; that the proeeéding before Justice Crutchfield was, in the absence of such a warrant, irregular, and that upon objection taken by Morris an adverse judgment would have been erroneous, and subject to be reversed upon writ of error. The fact remains that the Police Justice of the city of Richmond had ample, indeed, exclusive jurisdiction of the offence. The accused was present in court, made no objection to the trial, and if judgment had been rendered against him, would have been held to have waived any irregularity. It appears from the evidence, and indeed from the very terms of the assignment pf error presented by the plaintiff in error, that Morris was tried in the Police Court of the city of Richmond upon the warrant issued in Mewport Mews which sufficiently describes the offence with which he was charged. The evidence in support of it was fully presented to the trial court, which very properly rendered a judgment in favor of the accused. That was a final end to the prosecution for the alleged offence. Morris was put
“ Jurisdiction comes solely from the law, in no degree from the consent of litigants. So that neither consent nor anything else can authorize a court to act in a cause outside the sphere which the law has ordained for it. But where the_subject matter is within the cognizance of the tribunal, and the right to take jurisdiction of it in the particular instance depends on facts in pais,'—such as the residence of parties, and others within the like reason,—consent will, in the absence of any special circumstance forbidding, establish the required fact, the same as would the verdict of a jury; so that, in such a case, there may be waiver.” Bishop on Grim. Procedure, (4th ed.), sec. 124.
We are of opinion that these assignments of error are insufficient.
Bor like reasons we are of opinion that the objection to the form of the warrant cannot be maintained. “A warrant,” says Bishop, Yol. 1, p. 187, “ need not set out the crime with the fullness of an indictment, but it should contain a reasonable indication thereof. Minor defects will not render it inadequate as a justification to the officer.” It is true, that the warrant in this case charges that Morris unlawfully did take, steal and carry away money of the value of $40. It omits to charge that it was done feloniously, and we are not concerned to say that that word ought not properly to have appeared in it, or if objected to by Morris the warrant might not for that reason have been considered defective. The fact remains that no objection was taken; that the whole subject was investigated, and judgment of acquittal rendered. That judgment, we repeat, is a complete bar to any prosecution for the same offence.
Another assignment of error is to the giving of instructions offered by the plaintiff set out in bill of exception Mo. 2. The
The objection to the second instruction is that it is predicated upon the idea that the defendant- knew the plaintiff bore a good reputation for honesty and integrity, whereas the evidence shows that the defendant had no knowledge on this subject. The authorities cited with reference to the first instruction are equally applicable here, and the facts are even stronger. Plaintiff in error riffles in his testimony that he war. the managing owner of
The last assignment of error is to the refusal of the court to set aside the verdict and grant a new trial.
It appears that Morris was the captain of a tugboat owned and controlled by Jones. He received as compensation a salary of $50 per month. On January 5, 1897, he went into Newport News in command of the tugboat “ Henry Christian,” and went to the office of the owner of it, the plaintiff in error, and was told by him that his services were no longer needed, as he intended to place a Captain Lawrence in charge of the tug. This was the first intimation that Morris had of his discharge. He said in reply: “All right, Doctor, you are the boss, but I think you will find out that you have made a mistake.” He then asked Jones for a settlement, who replied that he could not settle at that time, but it was admitted that there was a balance due Morris. After this interview, Morris went on board the “ Henry Christian,” supposing that he had been properly discharged, but, after leaving Newport News and arriving at City Point, on his way to Richmond, he began to think the matter over, and went to the boat’s chest, took out the papers, and found that they still had on them his name as master of the boat, so that by marine law he was still the master of the boat. On reaching Richmond
As we have already seen, the evidence affords strong ground for the opinion that plaintiff in error was actuated by a fixed purpose to prosecute the defendant in error, and it by no means satisfactorily appears that a full disclosure was made of the circumstances to' either of his attorneys, certainly not to Mr. Boykin, who not only did not hear the case fully, but expressly declined to give any opinion upon it, and it is not less certain that Moss, the other counsel, was not fully advised. Plaintiff in error enters into no particulars as to the communications made by him to his counsel. He states in general terms that he stated the case fully to Mr. Moss, but it appears that he did not tell him that he had employed defendant in error, paying him $50 per month from the 1st of December to' the 1st of January; that he had discharged him without giving any reason for the act; that he had held back a part of his money; that his name still remained upon the papers of the tugboat as captain, after his discharge and when he collected the money in controversy, or that Oaptain Morris had told him that he had been advised by.counsel that he was entitled to claim his salary for the entire month. These material facts, and perhaps others, were not communicated to either of the counsel of plaintiff in error. If Morris, having received the money of Ms employer, fraudulently converted it
We are of opinion that the judgment should be affirmed.
Affirmed.