18 Wash. 293 | Wash. | 1897
The opinion of the court was delivered by
This action was brought to recover damr ages for malicious prosecution. The appellant Christian Scheuerman made complaint before a justice of the peace charging the respondent and one Pratley with burglary in entering appellants’ dwelling house. A warrant was issued and the respondent and Pratley were arrested. Pratley was discharged upon a motion of the prosecuting attorney and the justice of the peace discharged respondent, who thereafter brought this action and recovered damages in the sum of $1,500; whereupon this appeal was taken.
It is first claimed that the court erred in admitting in evidence the complaint and warrant upon which the respondent was arrested, but there is no merit in this contention,. for the defendants ■ admitted the proceedings before the magistrate.
It is next contended that the court erred in allowing proof by one Bolster, a stenographer who took-the testimony given before the justice of the peace, of what Scheuerman and his wife there testified to. The first ground of objection is that Scheuerman and his wife were still within the jurisdiction of the court', and that they should have been called to prove what their testimony was, and
In State v. Freidrich, 4 Wash. 204 (29 Pac. 1055), this court held that a stenographer who took down testimony could be asked as to what the testimony was, and could be permitted to refer to his notes to refresh his recollection, but that the notes were not competent evidence. However, it might be that the action of the court in the matter could be held harmless, considered with reference to the objection raised that it was not the best evidence, for we fail to find any contradiction in their testimony here in any important particular of the fact that they testified before the justice of the peace as shown by the stenographer’s' report. In some instances they claimed that they were mistaken in giving such testimony, but admitted that they had so testified as to certain parts which were called to their attention.
But it is further contended by appellants that much of the testimony given before the justice of the peace, and especially on the cross-examination of Mrs. Scheuerman, was inadmissible on this trial, and tended to prejudice the defendants. The respondent objects to the consideration of this for the reason that appellants’ brief does not indicate the part of the record where such testimony and the objection thereto can be found. It is true it is not stated under the third point, where the matter is argued, but in
Another point made, which it might be well to notice, is the alleged error of the court in not allowing the appellants to prove what was said by certain detectives to the prosecuting attorney in their presence upon their statement of what they claimed to be the facts relating to the burglary, it being argued that this proof was admissible for the pur
It is also contended by the respondent that the ruling was harmless because the jury in certain special findings ■found that the Scheuermans acted maliciously, that no burglary had been committed or attempted, and that such remarks were based upon their intentional false statements. ■Of course, what may have been said by the officers upon their fabricated statement could have been no justification for the prosecution. Mor was the question of probable •cause involved at all if the Scheuermans, knowing no crime had been attempted by the plaintiff, had conspired to get him convicted upon a false charge. But we are not prepared to say that all the statements of the officers sought to be proved were based upon what Seheuerman and his wife related as the facts. They at all times maintained the •charge to be true, and whatever facts existed independently of their statements would have a legitimate bearing to support such contention.
Reversed and remanded for a new trial.
Anders, Gordon and Reavis, JJ., concur.
ON PETITION FOR RE-HEARING.
Respondent has filed a petition for a rehearing in this cause, his counsel claiming that the reading ■of the long hand notes in evidence by the stenographer was with the consent of the defendants’ attorney. The record is not clear as to this. There is an expression or two
Rehearing denied.