25 Mo. App. 503 | Mo. Ct. App. | 1887
delivered the opinion of the court.
This was an action.for the malicious prosecution of an indictment for embezzlement and larceny. The petition charges, in substance, that the defendant falsely and maliciously, and without probable cause, by testimony given before the grand jury, charged the plaintiff with embezzling the sum of $1,127.22, intrusted to him by the defendant, as his agent, whereby an indictment was returned against the plaintiff, charging him with such embezzlement and larceny, the plaintiff arrested thereon, and discharged therefrom at the next term of
The petition lays the plaintiff’s damages at ten thousand, dollars. The answer is a general denial, and, also, a substantive defence, setting up that the indictment was dismissed with the consent of the plaintiff and his counsel. A trial before a jury resulted in a verdict and judgment for one thousand and fifty dollars, from which the defendant prosecutes this appeal. The trial is said to have lasted several days. The record abounds with exceptions and objections. The motion for a new trial contains twenty-one points, and sixteen distinct assignments of error are pressed upon the attention of the court in the appellant’s printed argument. Although the bill of exceptions contains ninety solid pages of typewriter print, without extra spaces between the lines, no index of the matter contained therein is furnished, but along fee bill is annexed to the transcript. The statement of the appellant is very long, but, though its correctness is challenged by the respondent, it does not point out the pages of the record where the particular matters of exception are found. It appears, however, to be, for the most part, a transcript of the record.
I. A witness for the plaintiff was permitted to testify to the plaintiff’s good reputation in the community for honesty. This ivas error. Brennan v. Tracy, 2 Mo. App. 540; Cornwall v. Richardson, Ry. & M. 305 ; Guy v. Gregory, 9 Carr. & P. 584, 587; Odgers on Slan. & Lib. 298. The rule in respect of the plaintiff’s character, in actions for slander, libel, and malicious prosecution, is the same as that in respect of the defendant’s character in criminal prosecutions. The plaintiff ’ s character is presumed to be good until challenged by the defendant ; and. the courts have, consequently, united upon the rule that the plaintiff can not give evidence of his general character, in these actions, unless such character is put in issue by the pleadings, or has been attacked on the cross-examination of his witnesses, or, by direct evidence
II. Evidence was admitted, against the defendant’s objection, that the plaintiff paid taxes upon one hundred and seventy-five dollars worth of personal property and three hundred dollars worth of real property. This evidence was obviously offered for the purpose of showing that the plaintiff was a poor man, and creating sympathy in his behalf on the part of the jury. In the state of our decisions, we are not prepared to say that competent evidence of the plaintiff’s financial standing .would have been inadmissible. In Buckley v. Knapp (48 Mo. 152, 162), which was an action for damages for a libel, the court permitted the plaintiff to introduce evidence touching the wealth of the defendant. It was held, upon a review of numerous decisions, that this was not error — the court proceeding upon the view that the wealth of the defendant may be taken into consideration by the jury, in cases where exemplary damages may be given, in determining the award of damages which ought to be made; since an award of damages, which would be a great punishment to a poor man, would be without value as a public example when made
But we are, nevertheless, at a loss to understand upon what principle entries in the tax books could be admitted in the plaintiff’s favor, as proving his financial condition. Entries in such books have been admitted where made upon the person’s own return, upon the principle of declarations against interest, where offered as evidence against the person; or, when offered in favor of the person, for the purpose of proving the fact itself, namely, that he has paid a certain tax, or that a certain tax was assessed against him. But when
III. There was no error in allowing a witness to testify that, in an interview with the defendant, after the indictment had been found, and at the term at which it was dismissed, the defendant told the witness that he, the defendant, “was going to penitentiary Kennedy, or something to that effect,” the witness did not remember exactly what. The evidence was meagre on the question whether the defendant voluntarily went before the grand jury and procured the indictment, and this. declaration was competent on the question of motive and intent. In actions for libel, slander, and malicious prosecution, subsequent declarations of the defendant are frequently admitted in evidence, as tending to show his previous animus against the plaintiff, and to characterize the motive with which the previous declaration was made or act done.
IY. But, for the same reasons, the court erred in refusing to permit a witness for the defendant, who, as assistant prosecuting attorney, had prepared the indictment and laid it before the grand jury, and who was with the defendant both before and after it was prepared, as well as at the term at which it was dismissed, and also at the time of the alleged statement detailed by the witness just referred to, to answer this question, put by the defendant: “ Bid Holladay exhibit, by any word or act, any ill-will or malice toward Kennedy ? ” It is true that malice, in a legal sense, is not hatred or ill-
Y. There was no error in permitting the plaintiff to testify that he “did not appropriate eleven hundred dollars, or any other sum, of Holladay’s money.” The criminal indictment charged that he did this. Although, as justly held in Brennan v. Tracy (2 Mo. App. 540), and other Missouri cases, and as the court charged the jury in* this case, the issue in such an action as this is, not whether the plaintiff was guilty of the crime charged in the criminal indictment, but whether the defendant had probable cause to believe him so ; nevertheless, the fact whether he was guilty or innocent is material, as bearing upon the question of probable cause, and no ruling with which we are acquainted makes testimony as to such fact irrelevant.
yi. But the court clearly erred in allowing the plaintiff, testifying in his own behalf, against the objection of the defendant, to say, “Ihave been trying to lead an honest life and raise an honest family.” The plaintiff could not prove his own good character by his own testimony, and this was clearly a prejudicial appeal to the sympathies of the jury, which ought not to have been allowed. The court ought to have rebuked the witness and instructed the jury to disregard the statement. /-
YII. The plaintiff, testifying in his own behalf, was asked: “ State what your actual damages were, if any, which you have sustained, in feelings, trouble, in damages to your character, in inconvenience, in the
YII1. Against the objection of Ihe defendant, the court admitted in evidence the record in a proceeding by arbitration, and a mass of testimony relating thereto, which arbitration took place between the plaintiff and the defendant after the indictment had been found, and which resulted in an award in favor of the present defendant, in the sum of twenty-five dollars, which award was made the judgment of the circuit court. This award was not competent evidence upon any view. In so far as it could speak on the question, whether facts existed authorizing the defendant to commence the criminal prosecution, upon a bona fide opinion, after reasonable inquiry, that the plaintiff was guilty of the
IX. Under the circumstances of this case, we see no error in allowing the plaintiff to put in evidence his own book, showing his account with the defendant as the agent of the latter. The defendant testified that, prior to the commencement of the criminal prosecution, he had called upon the plaintiff for the book; that, after being put off several times, and meeting with various excuses, he had been allowed to inspect it; and that his conclusion that the plaintiff was in debt to him in the sum of over eleven hundred dollars, for which he had failed to render any account, was founded in part, it is to be fairly inferred from his testimony, upon his exploration of this book. This seems to connect it with the res
X. We are not prepared to say that the court erred in refusing to sustain a demurrer to the evidence, at the close of the plaintiff’s case. Upoh the question whether the defendant went voluntarily before the-grand jury, or, when requested by the prosecuting, attorney so to do, supposed that it was his duty to go> and state the facts in the grand jury room, the evidence is very equivocal. There was no evidence .that the defendant ever did anything towards instituting this criminal prosecution, either by himself or by his attorney,. except to go into the grand jury room, at the request of the prosecuting attorney, and make a statement to the grand jury of his version of the facts, which statement, reduced to writing by some one, was given to the assistant prosecuting attorney, who, on the facts thereby furnished, drew the .indictment at the request of the grand jury. It does appear, however, that the defendant had consulted an attorney about the state of the plaintiff ’ s accounts with him; that the attorney had advised him that the defendant was guilty of embezzlement, and had been in consultation with the prosecuting attorney before the latter requested the defendant to go into the grand jury room. This, taken in connection with the other surroundings of the case, we think authorized the court to leave it to the jury to say
XI. A question of some importance arises upon the assignment of error, that an action for malicious prosecution had not been ended by a trial on the merits, but merely by a dismissal, or nolle prosequi. The authorities upon this subject are conflicting. We shall not enter upon the task of reviewing them, and especially we shall not collect them and throw them into the opposing scales for the purpose of being able to say in favor of which view there is a numerical preponderance of evidence. We have held, at the present term, in a case, however, where the point was not contested, that such an action may be maintained, where the indictment in the criminal prosecution was quashed on motion for insufficiency in point of law (McKenzie v. Railroad, 24 Mo. App. 392); and we see no reason why the same principle should not apply where the prosecution terminates by a voluntary dismissal, entered by the state’s attorney. The essential thing is, that the prosecution, on which the civil action is predicated, should have come to an end. How it came to an end can make no difference to the rights of the person injured thereby. Whether it ended in a verdict in his favor, in a quashing of the indictment, or in a nolle prosequi, he has been disgraced, imprisoned, and put to expense ; and the difference between the injury done him in the three cases is only a difference of degree, affecting the amount of his recovery.
XII. The court should have permitted the expert accountants produced by the defendant to testify, from
XIII. The instructions on which the case was submitted to the jury were very full, and were, on the whole, carefully drawn. There was plainly no error in telling them that, “in determining whether the defendant was actuated by the malice defined by the court, they are at liberty to take into consideration all the facts and circumstances in evidence before them.” On the contrary, it would be a misuse by the jury of their powers to decide the question of malice without taking all the facts and circumstances into consideration. Nor was there any error in defining malice as meaning ‘ ‘ a wrongful act, done intentionally, without legal justification or excuse.” This is the definition of malice commonly given in this state, both in criminal prosecutions
ITY. We are, however, of opinion that the court erred in refusing the following instruction:
“If the jury shall find, from the evidence in the cause, that the defendant was, by the prosecuting attorney of Butler county, sent before the grand jury, and that he went before it by the direction of said 'prosecuting attorney, and not on his own motion or suggestion ; and, upon being questioned by the grand jury, testified to what he believed to be true in reference to the criminal offence supposed to have been committed by the plaintiff, Kennedy, and thereafter took no further part in the criminal prosecution of Kennedy, then these facts are not such from which the jury can, or have a right to, infer malice on the part of the defendant, Holladay, and if the jury find such are the facts they must find the issues for the defendant.”
It was strictly applicable to the plaintiff’s evidence ; and if the facts embraced in the hypothesis were true, the defendant was neither guilty of malice nor was he mover of the criminal prosecution.
XY. We are not prepared to say that the court committed error in refusing the defendant’s instruction marked C. It is predicated upon the theory that the honest belief of the defendant in a certain state of facts, there recited, constituted probable cause, rendered the inquiry of malice immaterial, and, consequently, exonerated the defendant. It is true that, where there is probable cause, the question of motive is immaterial; but an honest .belief in a given state of facts does not, of itself, constitute probable cause. The belief must be based upon reasonable grounds, and must be the belief of a reasonable, careful, and prudent man.
XYI. The affidavits touching the remarks of the plaintiff’s counsel, in his argument to the jury, present no question for review. In the first place, we have held that such a ground for a new trial can not be raised by
Moreover, the affidavits are here conflicting in essential particulars, and this, on well settled principles, would remit the decision of the question to the trial judge, which decision would not ordinarily be reviewed on appeal. The State v. Baber, 11 Mo. App. 586 ; The State v. Johnson, 76 Mo. 121. Finally, the bill of exceptions does not show that any remarks made by the plaintiff’s counsel were objected to, or in any way brought to the attention of the court at the time when they were made. This must be done (The State v. Degonia, 69 Mo. 486; Barbour v. McKee, 7 Mo. App. 587); and even then error can not be assigned upon such a matter, unless the remarks were plainly prejudicial, and the court refused to check or rebuke the counsel making them.
The judgment will be reversed and the cause re manded. It is so ordered.