Pinson v. Campbell

124 Mo. App. 260 | Mo. Ct. App. | 1907

BLAND, P. J.

(after stating tbe facts). — 1. It is contended that Cope was not a competent witness to testify against defendant. Cope’s testimony was in respect to confidential communications made to bim by Campbell, bis client, for which reason Cope was an incompetent witness under tbe statute (sec. 4659, R. S. 1899) and at common la.w. But a client may unseal the lips of bis attorney (Riddles v. Aikin, 29 Mo. 1. c. 454) by testifying himself to tbe confidential communications, or by offering tbe attorney as a witness to prove tbe communications. [23 Am. and Eng. Ency. of Law (2 Ed), p. 82, par. C.] On cross-examination, Campbell testified, without objection, to employing Mr. Cope after tbe filing of tbe second information, to assist in tbe prosecution of Pinson and, without objection, repeated all tbe conversations be bad with Mr. Cope, as bis attorney, in respect to tbe criminal prosecution; by so doing, we think it is clear be waived tbe incompetency of Mr. Cope to testify.

2. Defendant moved for a peremptory instruction to tbe jury to find for bim, and contends tbe court erred •in refusing to grant tbe instruction for the reason Campbell communicated all tbe facts to tbe prosecuting attorney and Instituted and continued tbe prosecution on bis advice. Malice and want of probable cause must coexist to warrant an action for malicious prosecution, and where it is shown that the prosecutor consulted the prosecuting attorney in good faith, communicated to him all the ascertainable facts and, acting on his advice, instituted the criminal proceeding, he should be exonerated. [1 Joyce on Damages, sec. 441.] The finding of an indictment by a grand jury, or the commitment of an examining magistrate, is prima facie evidence of probable cause. [Sharpe v. Johnston, 76 Mo. 660; 1 Cooley on Torts (3 Ed), p. 328.] On parity of reason, the filing of an information by a prosecuting attorney on his own information and belief is prima facie evidence of probable cause, but not so when the information is predicated.on the affidavit of the complaining witness. In Sharpe v. Johnston, 59 Mo. 1. c. 576, it is said: “Probable cause is a mixed question of law and facts. When the facts are undisputed, it is the duty of the court to declare their legal effects.” There is a dispute as to whether or not Campbell communicated all the facts to the prosecuting attorney. He maintained that Pinson did not inform him of the mortgage when he bought a half interest in the business. Pinson swore he did inform him of its existence. This disputed question of fact was vital to the successful prosecution of the criminal case, hence it would have been error for the court to have declared, as a matter of law, that the evidence conclusively showed there was probable cause for ■ the prosecution.

3. It is contended that the court did not instruct the jury what facts, if proven, would constitute probable cause. Counsel for defendant must have overlooked instruction No. 3, given for plaintiff, which reads as follows:

“The court instructs the jury that if they believe from the evidence, that the defendant had probable cause to institute the criminal proceedings against the plaintiff, then the plaintiff cannot recover. Probable cause is defined to be a reasonable ground for suspicion, supported by circumstances and evidence sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense of which he is charged.”

This instruction correctly defined the meaning of probable canse and it was for the jury to determine from all the facts and circumstances shown in the case whether or not Campbell had probable cause to believe Pinson was guilty of the crime charged at the time the several affidavits were made.

4. Defendant objected and excepted to the giving of the following instruction:

“9. The court instructs the jury that before the plaintiff could be guilty of the criminal charge placed against him by Campbell, he would have to sell the mortgaged property and second, without informing Campbell that said property was mortgaged, and third, such sale must have been made with the intention on the part of Pinson of cheating, wronging and defrauding Campbell thereby.”

The contention is that it was a sufficient defense for defendant to prove that plaintiff had sold the mortgaged property without the consent of Collier, the mortgagee, and without informing defendant, the purchaser, of the existence of the mortgage, and hence the instruction imposed a burden on defendant that the law does not warrant, that is, to prove Pinson’s intent to cheat, wrong and defraud. The section of the statute (R. &. 1899, sec. 1933) on which Pinson was prosecuted, provides: “Every mortgagor or grantor in any chattel mortgage or trust deed of personal property who shall sell, convey or dispose of the property mentioned in said mortgage or trust deed or any part thereof, without the written consent of the mortgagee or beneficiary, and without informing the person to whom the same is sold or conveyed .. . for the purpose of defrauding the mortgagee, trnstee or beneficiary . . . shall be deemed guilty,” etc. So the offense, under the statute, cannot be committed without an intent to defraud the mortgagee, or purchaser.

No reversible error appearing, the judgment is affirmed.

All concur.