62 Mo. App. 21 | Mo. Ct. App. | 1895
The plaintiff, at the instigation of the defendant, was arrested and prosecuted for a trespass. The affidavit of the defendant and the information filed thereon were to the effect that, on a day stated, the plaintiff committed a willful and malicious trespass
The defendant’s answer is a general denial, and, further, that the prosecution was commenced under the advice of counsel.
The plaintiff had a verdict and judgment for $65, and the defendant has appealed. He complains of the action of the circuit court in refusing instructions asked by him, and that the petition fails to state a cause of action.
The circuit court refused the following instruction, of which the defendant complains: “The court instructs the jury that before you can find a verdict for the plaintiff in this cause, you must believe from the evidence the defendant instituted the prosecution against the plaintiff maliciously and without probable cause. And the burden rests upon the plaintiff to so prove by a fair preponderance of the evidence, that said prosecution was so instituted and carried on by defendant; and, unless the plaintiff has so satisfied your minds, by a fair preponderance of- the evidence in the cause, that defendant did institute said prosecution maliciously and without probable cause, then your verdict should be for the defendant.”
All that this instruction contained was substantially set forth in other instructions which the defendant had asked and the court had given, and for this reason alone it was properly refused. But, apart from this, it erroneously submitted the question of probable cause, which under the conceded facts was a question of law for the court. In order to maintain the action, it was incumbent on the plaintiff to prove that the
It will not be necessary to notice the other instructions which the court refused, as the same vice is to be found in all of them.
The assignment of error, that the petition failed to show that the plaintiff was prosecuted for a crime, is likewise untenable. It is not material that the charges made against the plaintiff did not constitute a
We do not think that the defendant has any just ground of complaint on this appeal. The instructions given were more favorable to him than the law and facts warranted, in that they submitted to the jury the question of probable cause. The judgment of- the circuit court will, therefore, be affirmed.