84 W. Va. 250 | W. Va. | 1919
The judgment reviewed for error plaintiff recovered in an action for malicious prosecution. The cause of complaint is the giving of plaintiff’s instruction, the refusal of defendants’ instructions Nos. 8 and 9, the modification of their instruction No. 7, and the rejection of certain evidence offered by them to sustain the issue in their behalf.
Defendants procured from a justice of the • peace of Kanawha County a warrant charging plaintiff with fraudulently obtaining from them $1300 by falsely pretending that he paid for property purchased by him for his and their joint
This brief outline of the testimony suffices to comprehend the discussion and decision of the several assignments presented and advocated by plaintiffs in error, defendants below. The only instruction proposed by plaintiff .and given, though in part correct in principle, contains a provision or clause not supported, we think, by proof sufficient to warrant its inclusion in the instructions as an element of the right to recover in the action. The objectionable clause informed the jury of their right to award damages against defendants if they believed from the evidence that defendants, without probable cause to believe the plaintiff guilty of a felony and “for the purpose of compelling plaintiff to pay them or either of them any sum of money, instituted criminal proceedings against the plaintiff” etc. The want of probable cause as an element of the recovery was submitted properly to the jury, but unless founded upon satisfactory proof it was error to include in the instruction as an additional element defendants’ motives in instituting the criminal proceeding. Two
The manifest object in including the statement regarding motives was to serve as the basis of an inference of a design on the part of the defendants to use the criminal proceeding as an agency through which to compel plaintiff to refund the money fraudulently obtained from them; in other words, that the prosecution was prompted by unjustifiable motives; in short, was malicious. In order that malice may be inferred from the want of probable cause the circumstances proved must warrant the implication. Southern Ry. Co. v. Mosby, 112 Va. 169. The contrary of the principle first stated in the Virginia case is asserted in Bailey v. Gollehon, cited: “If there was probable cause, the existence of express malice is imhnaterial. ” That is, if probable cause existed for the criminal prosecution, it is not material if it was inspired by an inducement other than for the public good. The only testimony tending in any degree whatever to justify the inclusion of the clause in the instruction is the statement of the witness Martin who arrested plaintiff: “Well, he (defendant Boykin) went with me down Capitol Street (while searching for plaintiff), and I don’t know but what he said that ‘he thought he would settle as soon as we got him’.” Boykin may have entertained that motive without being subject to censure. Not infrequently restitution has terminated the prosecution of criminal offenders, and the attainment of that object does not always necessarily show improper motives. But considered
It may be regarded as settled in this state that the discharge by a justice of the peace upon the preliminary hearing of one ■charged with the commission of a crime is prima facie evidence of want of probable cause, but it may be rebutted by proof showing the existence of such cause. Vinal v. Core, 18 W. Va. 1; Fetty v. Loan Co., 70 W. Va. 688; Sudnick v. Kohn, 81 W. Va. 492. It is different, however, where the justice actually tries the case and plaintiff is acquitted. Harper
In the modification of instruction No. 7 we perceive no error working injury to defendants. The propriety of their No. 8 depends upon a just answer to the question whether there was in fact such confidential relation between the parties as requred plaintiff to make full disclosure to his associates of the actual cash consideration paid for the assignment by Rutledge and Simms to him of the lease involved in this controversy. McKinley v. Lynch, 58 W. Va. 44. Upon this question the proof was conflicting and as an aid in the solution of that conflict we think the instruction ought to have been given. The acts and conduct of the plaintiff in subsequently obtaining from the assignors of the lease a statement that he had paid them $3300 for the assignment, when he had paid them a much less sum, is in itself significant upon the question of intent. Deception was unnecessary if his connection with the transaction was that of a mere dealer in the procurement and sale of the lease, as he undertook to induce the jury to believe and in which effort he seems to have succeeded. The instruction if given would have injected into the case a condition that might have produced a different result.
Though the testimony detailed the same conversation with McNair, no substantial reason warranted the exclusion of Boykin’s repetition of a like conversation with plaintiff regarding the arrangement of his purchase for the joint benefit of himself and defendants. It matters not when the conversation occurred, whether before or after the final consummation of the deal. It related to the object of the entire transaction and shows what the parties thereto contemplated from the beginning of the negotiations. This we think should have gone to the jury.
The same error resulted from the refusal to permit the jury to consider the statement of Rutledge as witness for defendants as to what McNair said to him Avith reference to the interest of the latter in common with defendants in the joint purchase of the lease and operation of the mine. This tes
The refusal to permit plaintiff to state on cross-examination whether or not he was informed by the defendant Frank Erwin of the receipt of $2,500 from his codefendant J. E. Erwin to be expended in the purchase of the lease, while perhaps erroneous, was not prejudicial, because other evidence 'clearly establishes the fact of such knowledge or information. Plaintiff wrote the message in response to which the money was obtained by telegraph, though purporting to be signed by Frank Erwin who authorized his signature thereto, and plaintiff was present and received the money at the hands of the bank officers, and applied $2,000 thereof to the payment of the assignors of the lease.
The errors pointed out require a reversal of the judgment and remand of the case for retrial.
Reversed and remanded.