Riley v. Gourley

9 Conn. 162 | Conn. | 1832

Williams, J.

It was claimed, that there was a variance between the record declared upon and that exhibited. The declaration states, that the defendant, on oath, charged the plaintiff, by the name of De Witt P. Riley; the complaint against him is a complaint against De Wilt P, Riley. There is, then, no variance ; and the only question must be, whether the plaintiff can be permitted to show, that he was the person intended by that charge.

It is said, the charge is evidently against another man. To this it may be answered, perhaps there is no man of that name ; perhaps the plaintiff was sometimes called by that name ; perhaps the defendant pointed out to the magistrate, or to the officer, this plaintiff, as the person named and intended by him. There is nothing in the manner of the charge, or in the nature of the testimony, which forbids the exhibition of such proof.

The third and fourth counts of this declaration describe the complaint as against the plaintiff, but not as against him by his proper name.

It is said, that it does not appear that the plaintiff was ever called by the name of De Witt P. Riley. Upon this motion, it is enough to say, that it does not appear, that he was not so called. The defendant, in this objection, must take the broad ground, that the fact that the plaintiff was intended cannot be established, by any proof; and in support of this proposition a number of cases have been cited, to show, that a plaintiff having prayed out process against a person by a particular name, cannot be permitted to show, that the writ was intended against a person of another name. It may, indeed, be very unsafe to permit a party, who has procured a process against one man, to aver, that it was intended against another, as third persons might thus be injuriously affected- But this by no means proves, that the person against whom such process has been procured,- and who may have been thus subjected to arrest and imprisonment, may not show that fact. It may be very proper, that the plaintiff should be bound by the description given in his own record, and yet very improper that the opposite party should be bound by it, We are not, here, how-

ever, upon the misdescription of a record. The record is rightly described ; and the question is, whether the plaintiff shall protect himself from an injury he has brought upon the defendant, by a malicious prosecution, from the fact that he has caused the injury by a mistaken name. The substance of the charge is, That by a malicious accusation of the defendant, the plaintiff has suffered ; and the question is, is that true ? In proof of the fact, the plaintiff offers the complaint made by the defendant against him by a name slightly differing from his real name, together with the oath of the defendant, that this was the person who committed the felony. Now, if this plain* tiff had been arrested, apd appeared and pleaded to that process, and after a full hearing had been acquitted, could there have been any doubt that he could have sustained this action ? Would not the fact, that the defendant appeared in that suit, and attempted to support the charge against him, be sufficient to show, that he was the individual intended ? And yet the complaint and oath would have been the same then as now ; and the case differs in no respect from this,, except that there, by his plea, the defendant admitted that he was the person intended to be charged, and here he offers to prove that fact. In both cases, it must be shewn who was the person really charged with the crime.

No mode is shewn, in which the declaration could be adapted to this case better than it is done in the third and fourth counts .of this declaration : of course, the defendant must claim, that this action will not lie, whenever a malicious prosecution is issued against a man charging him by a name somewhat differing from his real name ; and the consequence must be, that a mode is thus provided, by which one person can legally gratify his malicious passions upon another, and escape from all responsibility. It must be a very strange principle of law, which would lead to such a result; and no case has been produced, which sanctions it; and there is no reason why the real intent pf the party may not be enquired into, in this case, as well as in slander. There, by the liberality of modern decisions, a broad door is opened to ascertain the real intent of the speaker. This is, in fact, an action for slander, aggravated by the fact, that the charge is more public, made under oath, and accompanied with those very evils, which mere slander is calculated to produce — -arrest and imprisonment. And the libeller might as well screen himself by the letter of the libel, as this defendant by the letter of his declaration or writ.

It was also objected, that the evidence was not admissible on the third count, because it does not alledge, that the warrant, as well as the complaint, issued against the plaintiff, by the name of De Witt P. Riley. The allegation is, that he complained of the plaintiff by this name, and procured a. warrant to search the trunk of the plaintiff. The inference is a fair one, that the warrant followed the complaint; but the warrant is not described, except as a warrant against the plaintiff ; and if a complaint against De Witt P. Riley, is a complaint against the plaintiff, then a warrant upon that complaint, describing the plaintiff in the same manner, may be intended as a warrant against the plaintiff.

But as this verdict is upon the third and fourth counts, and as this objection does not apply to the fourth count, there can be no ground for a new trial, even if the objection to the evidence, as it respects the third count, could be sustained.

It was also objected, that there was a variance between the declaration and the proof, because the declaration alledges, that the defendant charged the plaintiff with theft, whereas the charge is, that his diamonds were stolen by some one unknown} and that he suspects the plaintiff. The complaint states, that his diamonds were stolen, by a person unknown; that he has probable cause to suspect and does suspect that they are concealed in the trunk of the plaintiff, and that he did feloniously steal them, &c. To the truth of this he makes oath, and adds, that he has good ground to suspect, and does suspect the plaintiff to have stolen said articles, and that they are secreted in his trunk, as stated in the complaint. In the words of Lord El-lenborough, in a ease almost exactly similar, I ask, “ Is it not a statement to a common intent, that the plaintiff stole his property 1 The accusation could not have been more direct, unless he had seen the very act.” It is, in substance, a charge of felony, and that the defendant did it. Davis v. Noak, 1 Stark. Rep. 377.

Another ground, upon which the defendant claims a new tria!, is, that the court refused to admit testimony to shew, that other workmen of the defendant, after the loss, and before the complaint, and when the plaintiff was not present, offered to be searched. How soon this was after the supposed theft, and under what circumstances it took place, we know not. Unless it. was accompanied with proof that the diamonds must have been taken by the plaintiff, or the other workmen, and that the search of the others was at such a time, and under such circumstances, that it probably must have been discovered, if taken by them, it seems to me utterly irrelevant. No such claim was made ; nor is it shewn, that the other workmen were searched, only that they offered, to be. How that fact, of itself, should affect the plaintiff, I am unable to discover. It is said, that it might tend to convince the defendant’s mind. The fact that the plaintiff refused to be searched, was admitted. The conduct of other persons was not in question, and ought not to affect the rights of the plaintiff.

I think, therefore, there should not be a new trial.

The other Judges were of the same opinion.

New trial not to be granted.