Palmer v. Broder, 78 Wis. 483

Palmer v. Broder

78 Wis. 483 | Wis. | 1891

Cassoday, J.

The evidence is voluminous. Much of it relates to the question whether the defendant, at the time of mating the complaint before Police Justice Orton, July-24, 1889, knew that at the time of the post mortem examination, September 10, 1885, the plaintiff removed a portion of the head or skull of Paul Broder, and had the same with him when he testified on the inquest, and thereafter took the same to his office and there retained it by direction of the justice, as mentioned in the foregoing statement. The evidence in that regard was more or less conflicting. The verdict against the defendant, however, resolved all disputed questions of fact in favor of the plaintiff. Numerous errors are assigned:

1. Exception is taken because the court allowed evidence on the part of the plaintiff, to the effect that the defendant, by false representations and pretenses made to the sheriff a week or so prior to the commencement of this action, and by concealment, purposely evaded the service of the summons and complaint in this action. Upon the argument some doubt was expressed as to the relevancy of such testimony, but upon careful consideration we are all induced to hold that it was admissible as bearing upon the question of the defendant’s good faith in instituting the criminal proceedings against the plaintiff. Such evasion of process is clearly admissible on a question of criminal intent. Dean v. Comm. 4 Grat. 541; Plummer v. Comm. 1 Bush, 78. Upon the question of guilty knowledge or intent, courts sometimes go so far as to allow proof of facts apparently collateral and foreign to the main subject in controversy. 1 Greenl. Ev. § 53. This is an action for malicious prosecution, and the intent with which the defendant instituted the criminal proceedings is very material; and hence any evidence tending to prove that intent was relevant. 1 Greenl. Ev. §§ 33, 37. Thus it has been held, “ in an action to recover damages for an injury to a hired horse by immoderate driving, evidence *488is competent to prove that the defendant, immediately after the injury charged, made an assignment of all his property.” Banfield v. Whipple, 10 Allen, 27. So it has been held that “ evidence is competent to prove that the adverse party in an action attempted to bribe a juror at a former trial of the case.” Hastings v. Stetson, 130 Mass. 76.

2. The defendant, having testified that she was in her house at the times the sheriff and the city marshal were there, Saturday, August 3, 1889, as they testified, to make service, was allowed to testify, on cross-examination by the plaintiff’s counsel, to the effect that on the same day she partially wrote a mortgage to one of her sisters, and perhaps an assignment to the other; that the next morning (Sunday) she went to Rockton, four miles south of Beloit, for counsel; that Monday, August 5, 1889, she went from Rockton to Rockford, for counsel, and returned to Rockton on the same day, and on the same day she executed before a notary public at Rockton the mortgage and assignment which were in evidence and dated July 31, 1889, and sent them from there to Beloit to be delivered to her sisters; that she remained in Rockton until the following Wednesday or Thursday; that while there she sent for a lawyer at Janesville to come to Rockton to advise her; that as soon as she got such advice she concluded to have other counsel, and went to Chicago for that purpose. It is claimed by the learned counsel for the defendant that the evidence thus elicited was irrelevant and improper cross-examination. But, upon the principles already stated, we are inclined to think the evidence was relevant, and therefore admissible, and that there was no abuse of discretion in allowing it to be proved on the cross-examination of the defendant.

3. On the question of the defendant’s good faith in instituting the criminal proceedings against the plaintiff, the court charged the jury to-hhe effect that they were to consider all the credible evidence in the case bearing upon *489tbe defendant’s knowledge and information at tbat time as to tbe plaintiff’s removal of a part of tbe remains and having tbe same present at tbe inquest and subsequently in bis office; tbat if sbe knew tbe plaintiff took tbe bones in question when tbe body was examined and bad them at tbe time of tbe inquest, and did not communicate tbat fact to ber counsel or to Police Justice Orton, then sbe could not receive tbe benefit of tbe advice of counsel; tbat if there was a misunderstanding between tbe defendant and tbe plaintiff as to what sbe authorized him to do at tbe tomb, whether sbe authorized him to remove any part of tbe remains from tbe tomb, it was hér honest belief as to tbe authority or permission which sbe gave him, and not Ms understanding of tbe matter, which was to be considered. Tbe court also charged tbe jury tbat H it is not contended tbat Dr. Palmer was in fact guilty of tbe charge made against him, and tbe evidence in this case shows tbat be was not guilty. Much discussion has been bad as to tbe powers and duties of tbe coroner at this inquest. I have no doubt tbat tbe coroner bad power in this case to direct tbat a portion of the remains be removed and preserved in a safe place, if be deemed it necessary in furtherance of tbe ends of justice, and especially so if such removal and preservation is considered, by tbe medical witness directed to make tbe examination, as reasonably necessary to preserve and perpetuate tbe evidence of supposed crime.” Exceptions were taken to these several portions of tbe charge, and also for refusing to instruct, in effect, tbat, if tbe remains of Paul were deposited in a tomb belonging to tbe defendant with tbe consent of bis kindred, then no one bad tbe right to enter tbat tomb and take away any part of tbe remains, without tbe defendant’s consent, and if they did then it was in violation of ber right and a trespass upon ber property; tbat if tbe license to enter tbe tomb was limited to tbe purpose of viewing or examining tbe remains, and a portion *490thereof was removed without the defendant’s knowledge or consent, then such removal was also a violation of her rights, and rendered the person removing them a trespasser from the beginning; that the justice of the peace and acting coroner possessed no authority to license any one to enter the tomb belonging to the defendant, in which were said remains, or to remove any portion thereof, except with the defendant’s consent; and that permission to do what was necessary to conduct the examination at the tomb would not be a license to remove from the tomb any part of the remains.

These requests to charge the jury seem to have been based upon the section of the statute which punishes any person not lawfully authorized who removes or conveys away any human body or the remains thereof. Sec. 4592, R. S. In considering a similar section of the New York Penal Code, Judge Rapallo, speaking for the unanimous court, said: “ The intent of the statute is manifest. It certainly was not intended to apply to exhumations made by legally constituted public authorities for the purpose of ascertaining whether crime has been committed in producing the death of the person whose body is exhumed. When the exhumation is made not secretly, but publicly on open application to the officer of justice charged with the duty of inquiring into the cause of death of any person whose body is brought within his jurisdiction, it is a total misapplication of the statute against body-stealing to use it for the purpose of imposing its punishment on all persons concerned in the exhumation, in case any proceedings of the officer under whose direction it was made should be found to be irregular.” People v. Fitzgerald, 105 N. Y. 151. Such we apprehend to be the manifest intent of the section of our statute cited, and fully justifies the charge of the trial court. The instructions so requested and refused seem to have been drawn on the theory that the plaintiff was on trial *491for tbe offense made punishable by that section, instead of the defendant being on trial for maliciously instituting such criminal proceedings without probable cause. The instructions so refused were inapplicable to portions of the evidence, or magnified matters about which there was no dispute, or were otherwise misleading. It is confessed that the defendant engaged the plaintiff to make the autopsy,— that is, the dissection of the body of Paul,— with a view of ascertaining the cause of his death; that she made the affidavit for the inquest; that she knew the post mortem examination or the autopsy was to be held; that at the time it took place at the tomb she knew it was to take place there.; that she went there herself, and saw Dr. Palmer there, and shook hands with him; that she knew he was there to make an examination of the body right there, at the tomb; that she consented that he should do so; and that she heard he made it right there at the tomb and at no other place. There is no dispute but what the plaintiff was directed to do what he did by the justice and acting coroner. The matters in dispute were fully and fairly submitted to the jury by the trial court.

4. A part of one of the instructions requested and refused contained this clause: “ The defendant was not bound herself to know the law and to act at her peril of a mistake of the law.” But the court in effect charged the jury that if the defendant fully and fairly laid before the attorney or Police Justice Orton all the facts bearing on the supposed crime which were within her knowledge, and upon such statement was in good faith advised by such attorney or magistrate that there was good ground for instituting such criminal proceeding, and thereupon acted on such advice, this would constitute a defense even though the advice may have been erroneous. “ The law deems the advice of counsel so given as equivalent to probable cause and a defense to such an action.” The jury could not have been misled in the particular named.

*4925. Exception is taken because, on the question of such advice, the court charged that, “if it appear that there was any understanding between the parties that advice should be given as a protection to the defendant and without any reference to the correctness of the advice given, then such advice does not constitute probable cause, nor is it a defense. In a word, the advice must be honestly sought upon an honest and full statement of the facts known, and honestly acted on by the' defendant.” The correctness of this, as a general statement of law, is not questioned, but it is claimed that there is no evidence justifying such imputation upon the fairness of the defendant. But there is evidence tending to prove that the defendant failed to state, either to the attorney who advised her respecting the criminal prosecution or to the police justice, all of the material facts which the evidence on the part of the plaintiff tends to prove that she knew at the time, and some of which she concedes in her own testimony that she then knew.

We find no reversible error in the record.

By the Oowrt.— The judgment of the circuit court is affirmed.