56 Mich. 585 | Mich. | 1885
This case was once before in this Court, and the decision is reported in 49 Mich. 561. On a re-trial the plaintiff recovered judgment for five hundred dollars against the defendant Crane, and the other defendants were acquitted. Crane brings error.
I. The action was brought to recover damages for malicious prosecution. At the time of the trial one Allen, who as justice had issued the warrant by which the prosecution was begun, was beyond the jurisdiction of the court, and the plaintiff offered to put in evidence his testimony given on the first trial. Eor this purpose he called the stenographer who took the testimony, and he testified that he had it present with him, and that it was correctly taken. The plaintiff then offering to read it, the defendant objected on the ground that he had since that trial taken the deposition of Allen in the case, by consent of the plaintiff, and had it then present in court. The fact was conceded by the plaintiff, but he insisted upon his offer of the former testimony, and the court received it.
, Whether the deposition of Allen taken by the defendant-
II. The plaintiff, in order to show that he was damnified by the arrest and imprisonment on the criminal charge, testified that he had employment offered, which be did not accept because of being detained. As evidence of this he produced a letter which he testified he received from his son, who was at the time general freight agent of the Chicago, Saginaw & Canada Bail road Company. The letter speaks of one of the employes of the road talking of retiring ; says : “ If you want the position, please come to St. Louis so as to commence on the twenty-fifth inst.; will hold it open until then,” — and it inclosed a pass over the road for him. The defendant objected -to the reception of the letter in evidence, but it was received ; and this is relied upon as error. No proof was given in the case that the son was empowered by the company to offer the plaintiff the employment.
The defendant requested of the court no instruction in
III. Defendant offered, the evidence of one Kelby to show that on the day following the alleged assault he was told by some persons that plaintiff had said to them, before defendant made the complaint, that he (the plaintiff) had his gun loaded at the time, and shot to kill; intended to mark them ■ — drop them right there, and track them by their blood; and that witness communicated these statements to defendant. The testimony was offered as bearing upon the good faith of defendant in making the complaint.- The court rejbcted the evidence as mere hearsay. We think this ruling correct. It would be very dangerous to permit parties to excuse unfounded criminal accusations by public rumor, or, what is no better, reports of what the party accused is said to have said to persons not brought forward to verify the reports.
IY. Plaintiff having given evidence that he had been called by defendant meddlesome and troublesome, defendant offered to prove that he was reputed to be a quarrelsome, meddlesome, and vindictive sort of a man. The offer was overruled. Defendant insists that the evidence was proper as showing justification for the epithets applied by himself to the plaintiff. But what he had said was important only
Y. The judge was requested to instruct the jury that want of probable cause cannot be inferred from malice. No doubt he intended to do this, but what he actually told the jury was that probable cause could not be inferred .from malice. This seems an evident inadvertence, but no one called the attention of the court to his error, and it is now- relied upon for the reversal of the judgment. We cannot think anybody was misled ; the error seems to have passed unnoticed at the time, and we may well assume that on both sides the parties either understood the judge to be giving the instruction requested, or they corrected the error in their own minds, and assumed that the jury understood the instruction as he intended it. We do not think the judgment should be reversed for this error.
Finding no other error in the case, the judgment will be affirmed.
I do not think the testimony concerning what was sworn to on the former trial by Allen was admissible without proof that other means were not available, and that there should be a reversal.