63 Iowa 214 | Iowa | 1884
I. The defendant instituted a prosecution before a justice of the peace, wherein he accused plaintiff of the crime of willful trespass. Upon a trial before the justice, plaintiff was convicted, and lined in the sum of $4, and judgment was rendered against him in favor of defendant tor $10' —the damage done defendant by the trespass as found by the-justice. The act of trespass complained of consisted in the' taking by plaintiff of wood and timber purchased by defendant, which was upon land owned by another.
III. A question asked defendant, while testifying in his own behalf, requiring him to state whether he was-prompted by malice in instituting the prosecution against plaintiff, was objected to on the ground, among others, that it was leading. The objection was rightly sustained for the reason that it was leading in form. No attempt was made to so correct the language of the question that it would not be subject to the objection.
IY. Upon the close of plaintiff’s evidence, the defendant moved the court to direct the jury to return a verdict for him, on the ground that plaintiff failed to establish facts entitling him to recover. The ground of this motion is, that plaintiff’s evidence fails to show, First, that defendant acted maliciously in instituting the prosecution; Secooid, that he had probable cause therefor; and Third, that he neither avers nor proves the termination of the prosecution. The motion was overruled, and the objections are renewed in this court.
In answer to the first objection urged in the motion, it is sufficient to say that there wras evidence upon the questions, both of malice and probable cause, -introduced by plaintiff. It cannot be said that there was an absence of evidence upon either point.
Aeeibmed.