Richardson v. Powers, 89 P. 542

Richardson v. Powers

89 P. 542 | Ariz. | 1907

KENT, C. J.

— This is an action for damages for malicious prosecution. The complaint alleges that in September, 1903, Powers brought a complaint before a justice of the peace, charging Richardson with having committed a felony by “digging a hole or shaft, and by putting up or constructing a fence upon or across a public road used by the public”; and that Powers caused and procured the indictment of Richardson by the grand jury for the alleged crime, which indictment was subsequently by the district court dismissed, and such action of the district court subsequently upheld by the supreme court on appeal; and further alleges that the acts committed by Powers in that respect were malicious and without probable cause. After hearing the testimony in the ease, the court instructed the jury “that the evidence in this case is insufficient to sustain the plaintiff’s alleged cause of action, and your verdict will therefore be in favor of the defendant.” From the judgment entered upon the verdict so rendered, Richardson has appealed, and has assigned as error this instruction of the court.

The abstract of the appellant does not contain the verdict,, the judgment or the minute entries of the trial court; nor does it contain the testimony given upon the trial, except that of the defendant Powers. Counsel for appellant in their brief state that all the allegations of the complaint were-proved beyond question by the evidence, except the allegations of malice and lack of probable cause; and upon the assumption that the evidence of the defendant, Powers, that is presented to us in the abstract, shows prima facie malic© *35and want of probable cause, we are asked upon this incomplete record to reverse the judgment of the lower court, on the ground that the court should have submitted to the jury the question whether malice and probable cause in fact existed. Upon the record as it is before us, and without the testimony in the case, we could not, in any event, assume that the testimony as a whole did not warrant the action of the trial court in directing a verdict for the defendant.

It is the duty of a trial court to instruct the jury to return a verdict in favor of the defendant, when the evidence given at the trial, taken as a whole, with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff. Gila Valley R. R. Co. v. Lyon, 8 Ariz. 118, 71 Pac. 957; Randall v. Baltimore & Ohio R. R., 109 U. S. 478, 3 Sup. Ct. 322, 27 L. Ed. 1003; Haupt v. Maricopa County, 8 Ariz. 102, 68 Pac. 525. Without the testimony taken at the trial before us, we cannot say that the action of the court was erroneous.

Furthermore, we do not agree with the contention of the appellant that the testimony of the defendant which is before us is in itself sufficient to show that there was want of probable cause, and to warrant the submission of the question to the jury. The facts, as they appear before us, which we do not deem it necessary to set forth, we think were sufficient to induce in the mind of a reasonable man a belief in the guilt of the accused, and to have justified the prosecution so far as the existence of probable cause is concerned. Whether there was probable cause is a question of law for the court to determine, where the facts are admitted; and we think the court, on the facts before us, was right in its action. McDonald v. Atlantic R. R. Co., 3 Ariz. 96, 21 Pac. 338.

The judgment of the district court is affirmed.

SLOAN, DOAN, CAMPBELL and NAVE, JJ., concur.