51 Wis. 474 | Wis. | 1881
1. The plaintiff was not bound to introduce in evidence the record of the replevin suit in which the perjury was alleged in the complaint of the defendant to have been committed, as such record was not stated in the complaint, but was set up in the answer as a part of the defense. But he saw fit to offer it in evidence, as also the record in the prosecution for perjury, both of which were objected to; and the only ground of such objection urged in this court is, that the papers in such pretended record were not properly attached, so as to be covered by one authentication. We are cited to the case of
2. The defendant, as a witness, was asked: “At the time you made the complaint, did you believe Sherburne had sworn falsely?” “At the time you made the complaint, did you make it in good faith?” “In making the complaint against Sherburne for perjury, were you actuated by malice, or did you make it believing he was guilty of perjury, and that he might be punished therefor?” These questions were objected
In actions for malicious prosecution, the want of probable cause and malice must concur, and the defendant is allowed, if he can, to disprove either. Spain v. Howe, 25 Wis., 625; Plath v. Braunsdorff, 40 Wis., 107; McKown v. Hunter, 30 N. Y., 625. The'intent, good faith and honest belief of the defendant are mental conditions which can be proved only indirectly, presumptively and inferentially by the facts and circumstances of the case; but malice, being a fact to be proved and directly in issue, now, since parties are allowed to be witnesses, there seems to be no good reason why the party who alone can positively and directly know and testify to such fact, or in contradiction of such fact, may not so testify, by any and all accepted rules of evidence. We think that within the reason of Wilson v. Noonan, 35 Wis., 321, and according to the authorities cited by the learned counsel of the appellant, these questions were proper in this case, going to the question of actual malice, and strictly the circuit court erred in sustaining the objection of the plaintiff to the admissibility of the testimony so offered.
But there is another rule in all such cases, equally strict, and that is, that this court will not reverse a judgment for errors which occur on the trial, if it clearly appears from the whole record that the verdict and judgment are right, and could not properly have been otherwise. Manny v. Glendinning, 15 Wis., 50; Barton v. Kane, 17 Wis., 37; State ex rel. v. Avery, 17 Wis., 672. There-was more evidence of the malice of the defendant in his prosecution of the plaintiff for perjury than the mere facts and circumstances tended to show inferentially and indirectly, or than could be inferred from a want of probable cause, which of themselves would have made a strong case against the defendant. There was the direct testimony of several credible and uncontradicted witnesses, that
3. The learned judge who tried the cause instructed the jury, at the request of the appellant, as follows: “If the jury find from the evidence in this cause, that the defendant, in making the complaint and causing the arrest of the plaintiff, acted, at the time of so doing, in perfect good faith in making the said complaint upon which the warrant was issued upon which the arrest of the plaintiff was made and he was subsequently prosecuted, fully believing all the facts contained in the complaint, and that, before making said complaint, he called upon B. B. Menzie, Esq., an attorney-at-law in good standing, and upon A. I). Thomas, an attorney-at-law and district attorney of Walworth county, and fully, fairly and hon
The instruction to the jury in Plath v. Braunsdorff, supra, was, that “ the advice of an attorney at law, given m good faith, and with a full knowledge of the facts involved in the issue to be tried, is a complete defense to an action for malicious prosecution on account of such trial.” Mr. Justice LyoN said, in his opinion in that case: “"Were we to criticise it (the charge to the jury) we should say that it is quite as favorable to the defendant as the law will permit.” And again: “We are of the opinion that the charge of the court to the jury covered the whole case, and included all that could properly have been given of the proposed instructions.” This qualification having undergone the scrutiny of this court in that case, and been fully approved, it is no longer an open question whether it is proper in any case. From the very strong language of the. above instruction, given at the request of the appellant, that the advice
4. Exception is taken to the language in the instructions that “ the charge of the defendant is, that the plaintiff committed perjury in swearing that the animal was his — that the title was in him.” It is insisted that the perjury was committed in swearing to the marks upon the animal and its identity, and not in swearing that it was his. The question of title depended upon the marks and identity of the animal; and it was therefore not even inaccurate to say that the plaintiff swore it was his, that the title was in him, when he swore to the marks and identity.
Other exceptions to the charge, not especially urged on the argument, will not be noticed, because they appear to be more
By the (Jowrt.— The judgment of the circuit court is affirmed.