59 Mo. 557 | Mo. | 1875
delivered the opinion of the court.
This was an action for a malicious prosecution instituted by Sharpe against Johnston, Henry G. McPike and Abraham McPike. The petition contained three counts. There was a finding for the defendants on the second and third counts, and on the first count plaintiff had a verdict and judgment for $6,331.12, which was affirmed at General Term- and from which judgment defendants have appealed to this court. The first'count is as follows:
“Plaintiff states that the defendants, contriving and maliciously intending to injure plaintiff in his good name, fame and credit,, an’d to bring him into public scandal, infamy and-disgrace, and to cause him to be arrested and imprisoned, and thereby to impoverish, oppress and wholly ruin him, on or about the 12th day of July, 1871, made and caused to be made, ánd lodged a certain affidavit or information in the Court of Criminal Correction in and for the County of St. Louis, State Of Missouri, a court having jurisdiction to determine the of-fences therein complained of, wherein the said defendants at tli'e' 'county aforesaid, falsely and maliciously- and without probable cause whatsoever, charged and caused the plaintiff to be charged with the crime of embezzlement and converting to his own use in the county aforesaid on the 23d day of November, 1870, the sum of $605.96, in money of the value ol $605.96 and ten bales'of cotton of the value of $833.89; that'# in pursuance of- said complaint, a certain warrant of arrest under the seal of said court-was issued for the apprehending and taking of plaintiff, and for bringing him before the said court, to be dealt with according to law, for the said supposed Offense.
And the defendants under and by virtue of said warrant, afterwards, to-wit: On the - day of 1871, wrongfully and unjustly, and without any probable cause whatsoever’. caused and procured the plaintiff to be arrested by his body, and to be imprisoned and afterwards carried and conveyed in custody, through the public streets, before said court
And the defendants then and there again appeared before said court, alleging and repeating the said false and malicious charges and seeking by hired servants and attorneys to maintain and render successful their said false and malicious charges.
And the said court having heard and considered' all that the said defendants could say, allege and swear, against the plaintiff, touching and concerning the said supposed offense, then and there, to-wit: on the--day of July, 1871, adjudged and determined that the said plaintiff was not guilty of the same, and that there was no probable cause for his said arrest, and then and there caused the said plaintiff to be discharged out of custody of the said court; and all prosecution for said supposed offense is now determined, and the defendants have deserted and abandoned the same.
Plaintiff states that by reason of said premises he has been greatly injured in his said credit and reputation, and brought into public scandal, infamy and disgrace, amongst his neighbors and other good citizens of the'Country; that he has suffered great anxiety and pain of body and mind, and has been forced and obliged to lay out and expend divers large sum's of money, in and about procuring his said discharge and defending himself, and has been greatly hindered and prevented from following and transacting his lawful and necessary affairs and business for a long time, and has been otherwise .greatly injured in his credit and circumstances aforesaid, all in the damage of $10,000.00, for which he prays judgment.”
The second count charges that defendants on the — day of September, 1871, submitted to the grand jury of the county of St. Louis, and in the St. Louis Criminal Court, false and fraudulent testimony, whereby defendants malicionsly arid without probable cause procured the court and grand jury to find au indictment against plaintiff for the crime of embezzlement, in November, 1870, in St. Louis county, of the sum of
In the third count plaintiff charges that on or about the 20th November, 1871, defendants again had plaintiff indicted, maliciously and without probable cause, in the St. Louis Criminal Court, for embezzling $605, and twelve bales of cotton of the value of $80 each, had plaintiff arrested, and on hearing, the court adjudged him not guilty and discharged him; that all prosecution thereon is ended: and plaintiff asks judgment for damages in the sum of $10,000.
The defendants, in their answer, admitted that one of the defendants, Henry C. McPike, made and subscribed the affidavit or information mentioned in the petition, but denied that the same or any indictments or any proceedings thereunder were begun, continued or prosecuted, for the purpose of injuring the plaintiff, gtc., etc., and denied that said Sharpe was wrongfully or unlawfully and without any probable cause, prosecuted or arrested on said charges in the affidavit or indictments alleged, but averred that said prosecution and indictments were without any malice, and with probable cause to believe the plaintiff guilty of the criminal offences charged in the affidavit; and relied for a justification of their prosecution of plaintiff on the advice of counsel, after a full and fair statement of all the facts to such counsel, that Sharpe was criminally liable.
It appears from the record that in August or September, 1869, the defendants, composing the firm of McPike, Johnston & Co., dealers in stock at St. Louis, entered into an arrangement with the plaintiff Sharpe, who was largely acquainted in' the State of Mississippi, whereby defendants were to furnish the money and buy and ship mules and horses to
All transactions connected with the joint enterprise, conducted by Sharpe were in his name as agent, for prudential reasons, as he states. Defendants claimed that he never sustained any other relation to them than that of agent. Sharpe, on the other hand, claimed to be a partner.
In May, 1870, the season for the sale of horses and mules having closed, Sharpe returned to his home near Carondelet, when he received a note from one Freeman, a clerk of defendants, informing him that Henry McPike was at home and had set the following Monday to see him, and that he, McPike, wanted him to bring his papers up, that he wanted to settle up as far as he could, and see how the winter’s trade stood. Sharpe went up and had a settlement of the winter’s transactions. He had his books with him at that settlement, and himself testifies that all the mules that were sent down were accounted for in that settlement. By its terms, the net profits were ascertained to be about $1,200, one-third of which be
C- McPike’s book, ,514 94
.Ex. paid by Sharpe as per liis book, 4,092 19
$27,607 13
Sales of stock, money collected by Sharpe as per his book, 28,810 50
Leaving balance net p'rofit, J. W. Sharpe, Dr. to McPike, Johnston & Co., $1,203 37
For stock and expense in St. Louis, and ex. ' ■ paid by PI.- O. McPike, ,540 29
Two-third not profits on stock, 802 25
Interest on Stewart'draft' 72 81
£t “ Drake’s and other's, 14 76
$24,430 1-1
Or. By cash and drafts, 23,462 05
Balance due on settlement by J. W. Sharpe $968 06”
"The mule sheds built by Sharpe at Rodney, having been reckoned in the expense account is now the-property of McPike, Johnston & Co. and Sharpe, McPike, Johnston & Co. owning two-thirds of said property.”
Plaintiff offered in evidence also the following memorandum, identified by plaintiff as correct, relating to this settlement, May. 1870. i
" Due McPike, Johnston & Co., on settlement of trade at Rodney,- Miss., nine hundred and sixty-eight dollars and fifty-six cents, and responsible for one-third of sundry notes here
To the sum of $968, found to be due from plaintiff to defendant on this settlement, was added other indebtedness of Sharpe to the firm and to Abraham McPike individually, making in all the sum of $2,000, for which sum he executed his note to McPike, and secured the same by deed of trust. When the Stewart draft, mentioned in the memorandum of settlement, matured, it was protested for non-payment, and Sharpe was notified that it was in the hands of a man named Drake, at Bodney, Miss., to whom it had been sent by defendants for collection. Sharpe, being responsible for one-third of the amount of this draft, if not collectible, objected to its being intrusted to Drake for collection, and at the instance of the defendant Johnston, he agreed to go to Mississippi and collect the same, and received from defendant $100 to defray his expenses for that purpose, and took an order from the defendants on Drake, for the draft. This was. about the 1st of September, 1870.
Plaintiff testified that after the settlement in May, he had no business relations with the defendants, except when he went'down to collect the Stewart draft. He saw them frequently, and went to them repeatedly between May and September’, for money which they promised at the time of the settlement to let him have to trade-in Illinois, but they re- ’ fused to advance him any.
Sharpe went to Bodney, received the draft from Drake, and obtained from Stewart, on account of said draft, twelve bales
About the 1st of November, 1870, A. McPike sold the mule sheds at Rodney for $25o. The testimony as to the value of these sheds was conflicting, and varied from the sum for which they were sold to $1,000. Sharpe estimated them still higher.
On the 21st of November, 1870, plaintiff wrote a letter from Oarondelet, to James Johnston, informing him that he had received twelve bales of cotton on the Stewart draft, but did “not know how much it would bring.” This letter, James Johnston testifies, was in answer to a note from him to Sharpe. In the latter part of November one of the defendants called on Sharpe at Oarondelet, and demanded the proceeds of the Stewart draft collected by him, Sharpe in the interview having stated he had sold eight bales and received the money, but had no returns from the other four bales. Two of the defendants afterwards called on Sharpe for the money in his hands, but in consequence of the sale of the mule sheds by McPike, at a sum much less than the original cost and what Sharpe claimed to be their true value, and for alleged frauds practiced upon him in invoicing mules to him at a larger sum than was paid for them by defendants, he refused to pay over the money collected, or make any settlement. Defendants then took legal advice, and after stating, as they testify, all the facts and circumstances attending their business connections with Sharpe, and the collection of the Stewart draff, and his refusal to surrender the proceeds, were informed that Sharpe was liable to a criminal prosecution. By direction of their counsel, they went to Sharpe and informed him of the advice they had received; but he refused to make any settlement himself, and referred them to his attorneys.
Defendants returned, took further legal advice, and instituted the proceeding in the Court of Criminal Correction.
There was testimony tending to show that Sharpe was insolvent.
The following instructions were given at the request of the plaintiff:
1. “If the jury believe from the evidence, that on the 17th day of January, 18721 John "W. Sharpe, the plaintiff, was acquitted of the crime of embezzlement in the St. Louis Criminal Court, upon the indictment found against him at the November term, 1871, of said, court, for said crime, then he is innocent of the said crime of embezzlement as charged in the complaint in the Court of Criminal Correction, and in the two indictments submitted in evidence.”
2. “If the jury believe from the evidence, that the prosecutions in the Court of Criminal Correction and the Criminal Court, were without probable cause on the part of the parties prosecuting the same, then they may infer that said prosecution was malicious, and if they so find, they ought to return a verdict for the plaintiff.”
3. “By ‘pi'obable cause’ is meant a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offense with which he is charged.”
é. “Malice means a wrongful act done intentionally without legal justification or excuse.”
5. “If the jury find from the evidence that the defendants in said prosecution were actuated with hostile, angry and vindictive motives against the plaintiff, and that said prosecutions were without ‘probable cause’ as defined by the court in instruction No. 3, then they should find a verdict for the plaintiff.”
7. “The defendants cannot shield themselves under the advice of counsel, unless they show that they communicated to such counsel all the facts bearing-upon the guilt or innocence of the accused, which they knew, or by reasonable diligence could have ascertained.”
8. “And even if the jury should find that the defendants, prior to such prosecutions, communicated to counsel learned in the law, all the facts as defined in iilstruction No. 7, yet, nevertheless, if they should further find that such -prosecutions were without probable cause, and that such counsel were not consulted by them in good faith, but that defendants were actuated, in consulting such counsel and in commencing said prosecutions, with angry passions and a hostile desire to injure and wrong him, then the opinion and advice of such counsel is of no avail as a defense in the cause.”
9. “If the jury believe from the evidence, that defendants, in the fall and winter of 1869-70, were associated with the plaintiff in the purchase and sale of stock, and that the defendants were to furnish the capital and buy the stock, and the plaintiff was to attend to the sale and the collection of the proceeds thereof, and that the plaintiff was to have one-third of the net profits and the defendants two-thirds, then the plaintiff and defendants were co-partners in such business.”
10. “If the jury find that the plaintiff and defendants were in co-partnership according to the law as laid down in in
11. “If'the jury find that plaintiff and defendants were in partnership, as defined in instruction No. 9 for plaintiff, and if they further find that plaintiff and defendants had an accounting about the 24th of May, 1870, such as is mentioned in instruction No. 10, then in respect to the assets of said co-partnership they remained co-partners still, and the plaintiff could not be guilty of embezzlement by refusing to account or pay over any of the assets of said partnership.”
12. “The crime of embezzlement, under the law of this State, is where an agent, clerk or apprentice, servant or collector, of a private person or of any co-partnership, (except persons so employed uudér the age of sixteen years) or where any officer,, clerk, agent, servant or collector of any incorporated company, or where any person employed in any such capacity, shall convert to his own use, or shall take, make way with or secrete with the intent to convert to his own use, without the consent of his'master or employer, money, goods, rights in action or any valuable securities or effects whatsoever, belonging to any person, which shall come into the possession or under the care of the offender by virtue of such employment or office.”
13. “In order to constitute the offense of embezzlement, the money or property must belong to soxne other person, and
14. “If the jury find for the plaintiff, he will be entitled to recover such damages as the jury may believe from the evidence, he suffered by reason of the prosecutions; and in addition thereto the jury may add such further amount, by way of exemplary damages, as they think from all the circumstances the defendants should be punished with.”
To the giving of which instructions, defendants at the time excepted.
At the instance of defendants, the court instructed the jury as follows:
1. “If the 'jury find from the evidence, that the draft on James Stewart, of Rodney, was turned.over to the firm of McPike, Johnston & Co., by J. W. Sharpe on the settlement of May, 1870, as cash, then the firm of McPike, Johnston & Co. became the owners of said draft.”
2. “The issue for the jury to try in this case is, not the guilt or innocence of Sharpe of the crime alleged against him in the affidavit or in the indictments, but the issue is, whether from the facts and circumstances given in evidence, the defendants acted maliciously and without probable cause, and the burden of proof rests with the plaintiff.”
The court of its own motion gave the following instruction:
3. “If the jury believe from the evidence that the defendants, before the criminal prosecutions given in evidence were begun against the plaintiff Sharpe, consulted in good faith with one or more attorneys at law, and communicated to said attorneys, in good faith, all the facts within their knowledge, or which they might have learned by reasonable diligence, bearing upon the guilt or innocence of the said Sharpe, of the crime charged; that said consultation and communication was had and made by defendants in good faith with a view
To the giving of which defendants excepted.
The defendants asked five instructions which were refused by the court. Two of these instructions were substantially given in defendants’ second instruction. Two of them were intended to cover the ground taken in the instruction given by the court of its own motion, one of them substituting for the words “advised such prosecutions” in the court’s instruction, the words “ advised the defendants that Sharpe was guilty,” and the other, the words “ advised the defendants that Sharpe was liable criminally as for a felonious conversion of said moneys.” The remaining instruction asked by defendants, and refused by the court, was intended to state the facts in evidence, which would amount to probable cause, but was faulty in saying nothing of the ownership of the draft. Besides, the failure to communicate with defendants, as therein stated, may have been entirely innocent.
It is a proposition too well settled to require the citation of any authorities in its support, that the existence of malice .and the want of probable cause are both necessary to the maintenance of an action for malicious prosecution. They are distinct and essential ingredients of this private wrong. If there be reasonable or probable cause, no malice, however distinctly proved, will make the defendant liable. The proof of malice does not establish the want of probable cause, nor does the proof of want of probable cause necessarily establish the existence of malice. That is to say, malice is not an inference of law from the want of probable cause. Malice, however, need not be proved by direct and positive testimony,
Probable cause is a mixed question of law and fact. When the facts are'undisputed, it is the duty of the court to declare their legal effect. When they are disputed, it is for the jury to determine the question under properinstructions from the-court. (Hill vs. Palm, 38 Mo., 13, and authorities there cited.) The facts relied upon by plaintiff to show want of probable cause, and to which reference is made in his instructions, are, first, his discharge by the committing magistrate, and his acquittal in the criminal court; second, that defendants-did not communicate to their counsel, before instituting the prosecution, all the facts-and circumstances attending the. collection and retention of the proceeds of the Stewart draft, which they knew or, by reasonable diligence, might have known ; third, that they did not consult their counsel in good faith ; and fourth, that the' relations of the parties and their respective interests in the-money retained by Sharpe were such that the crime of embezzlement charged against him, could not have been committed by him. We do not see any impropriety in telling the jury thelegal effect of the acquittal of Sharpe, especially as they were told, at the request of the
The second and third propositions relied upon by plaintiff, were correctly presented in his seventh and eighth instructions. The advice of counsel will not amount to probable cause, when the prosecutor resorts to such advice only asa cloak for his malice. He must consult counsel in good faith, and it is not only his duty to make himself acquainted with all ascertainable facts having a bearing upon the supposed offence, but he must communicate all such facts to his counsel, however immaterial he may deem them to be. (38 Mo., 13, and authorities cited.) This brings us to the relations of the parties as declared in the ninth, tenth and eleventh instructions. The proposition embodied in the ninth instruction, that a contract providing for a communion of profits,
In every point of view then, Sharpe, after the settlement in May, had no further interest in the Stewart draft as a partner ; it was the sole property of the defendants, and when he undertook its collection, he did so as their agent. It follows from these views that the court erred in giving the tenth and eleventh instructions for the plaintiff. We see no error in the other instructions given for plaintiff.
We are further of opinion that the instruction given by the court of its own motion, was erroneous in requiring.the jury to find that the attorneys, consulted by the defendants, advised the prosecutions. Counsel, learned in the law, are the proper advisers of men in doubtful circumstances, but honorable men in the profession cannot be expected to advise criminal prosecizrions, or to incite civil litigation. It is their business to advise only as to the legal rights or liabilities arising from the facts stated to them by their clients, and ■such advice when fairly and honestly obtained, exempts the party who acts upon it from the imputation of acting without probable cause. The instruction of the court is otherwise to be preferred to either of those asked by defendants on this subject.
We are all of opinion therefore that the judgments of the General and Spechzl Terms should bez’eversed, and the eause feznanded to the Special. Term; and judgment will be entered accordingly.