21 Mo. App. 244 | Mo. Ct. App. | 1886
delivered the opinion of the court.
This was an action for damages for the malicious prosecution of a criminal action. The plaintiff had a verdict and judgment, in the sum of one thousand dollars, and the defendant appeals. The case has been presented on the part of the appellant by able counsel, in
I. That there was a total failure to prove the case stated in the petition. The petition recited in substance that the defendant caused a certain Lillie Wallace, alias Lillie O’Donnell, to charge, before the prosecuting attorney of the St. Louis court of criminal correction, that the plaintiff had feloniously made and forged a certain chattel mortgage, and that the defendant had thereby procured the prosecuting attorney to grant a warrant for the arrest of the plaintiff upon this charge; that the prosecuting attorney issued the said warrant; that the plaintiff was arrested under the same and was compelled to give.bail, etc. ; and that thereafter, upon an examination of the charge, the grand jury ignored a bill of indictment for the same. The evidence was to the substantial effect that the defendant and one Moiris were partners in the practice of the law; that they were counsel for the woman Liljie Wallace, alias Lillie O’Donnell, in a certain controversy between her and the Staley House Furnishing Company, touching the goods described in the chattel mortgage above stated; that the Staley House Furnishing Company, claiming the goods under the chattel mortgage, had demanded possession of them; that thereafter the defendant had gone to the office of the plaintiff, exhibited to him the chattel mortgage in question, called his attention to the words, therein, “S. W. Cor. Seventh and Clark avenue,” which had been interlined therein by the plaintiff after the same had been signed and acknowledged by Lillie O’Donnell, and threatened the plaintiff with a criminal prosecution for forgery if the Staley House Furnishing Company made any attempt to take forcible possession of the goods ; that, within a week thereafter, the Staley House Furnishing Company brought .an action of replevin for the goods ; that a criminal information, with the affidavit of the private prosecutor thereto, had been drawn up and filled out partly in the handwriting of
The fatal variance between the allegations and evidence is supposed to lie in the fact that the petition states that the warrant of arrest was issued by the prosecuting attorney of the court of criminal correction, whereas it was, in fact, issued by the clerk of that court. From this it is argued that the plaintiff states one case and endeavors to prove another ; that the case which he states is no case of malicious prosecution at all, but merely a case of assault and battery and false imprisonment, or of false and malicious arrest; that we must judicially know that the prosecuting attorney of the court of criminal correction has no authority to issue a’ warrant for the arrest of any one; that, if he did so issue a warrant, it was void, and the officer making the arrest under it was merely a trespasser; and that, under such a state of the case, the action would be for a false arrest against the prosecuting attorney issuing
We are of opinion that the point is not well taken. We regard it as a mere question of variance between the allegation and the proof. The substantial fact charged was that the warrant of arrest had issued upon a charge of forgery; that the plaintiff had been arrested thereunder, and that the prosecution had failed by reason of the fact that the grand jury had subsequently ignored the bill. The fact that the officer issuing the warrant was mis-described, was, in our opinion, a mere case of variance under the statute between the allegation and the proof, to which the attention of the court should have been directed at the trial, and, this not having been done, the question can not be raised now, for the first time, on appeal.
II. The next substantial point made in behalf of the appellant is, that upon the law and the evidence there was no case against him to go to the jury, and that the court ought to have directed the jury, as requested by him, that the plaintiff could not recover. After an attentive examination of the record, we are satisfied that this point is not well taken: In addition to the facts above stated, the evidence tended to show that the woman, Lillie O’Donnell, was the keeper of a house of prostitution ; that there was a mortgage upon some furniture belonging to her, held by one Evans; that she bought of the plaintiff an additional quantity of furniture upon an agreement that the plaintiff should take up the Evans mortgage, and that she should give a new mortgage covering the furniture mentioned in the Evans mortgage and the furniture now sold to her, to secure certain notes therein named; that the furniture which the plaintiff sold to her was to be delivered at two different houses which she kept, one on the corner of Sixth and Elm streets, and the other on the corner of Seventh street and Clark avenue ; that, when the mortgage was drawn up and acknowledged by her before the notary, she could
If an attorney join with his client in prosecuting a criminal charge against another, not for the purpose of' subserving public justice, but in order to effect some private purpose of the client, such a prosecution is malicious ; and proceeding upon such • a motive, the-attorney is bound equally with the. client to see to it that there is probable cause for the prosecution. His-case is not different from that of any other agent who-assists his principal in performing an act to the hurt of a third person, undertaken without good motives or for justifiable ends. If in such a case the act be unlawful, the law does not discriminate in fixing the liability between the principal and the agent. It does not punish the former and absolve the latter; but the command of the one is no justification to the other, and they are both treated as co-trespassers or joint tort-feasors. Prom the standpoint of the law, the position of the-attorney is, in such a case, exactly the same as that of the client; from the standpoint of sound morals, it is infinitely worse, for he prostitutes the privileges which the state has conferred upon him of appearing in its-courts as an officer of those courts and a minister of justice. The client may, indeed, in many cases, excuse his motives by proving that he acted under the advice-of his counsel, but no such refuge is left open to the attorney. He is learned in the law and knows the ground whereon he stands. His client confides in him and obeys-his directions. He is the chief actor; and where actuated by the corrupt motives of effecting some private purpose-of his client, he institutes an unfounded criminal prosecution against an innocent person without a belief in the
In order to make out the offence of forgery, in the case under consideration, it was not only necessary that the plaintiff should have altered the chattel mortgage without the consent of Lillie O’Donnell, but it was also necessary that he should have done it with a corrupt purpose. He may have done it without her consent, and yet he may have done it without a corrupt purpose, but may have done it to effectuate the previous understanding of the parties. The evidence shows that the defendant was Lillie O’Donnell’s attorney in a civil action; that before he instituted the prosecution he had gone to the plaintiff and heard his version of the affair. It also tends to show that the alteration was made with the consent of Lillie O’Donnell, or, at most, that it was done
III. Complaint is made that the court refused to give the following instruction asked by the defendant:
“The court instructs the jury that if they believe from the evidence that the plaintiff was committed by the St. Louis court of criminal correction for the offence charged against him in the affidavit made by Lillie O’Donnell, then, prima facie, the defendant had probable cause to believe plaintiff guilty of the offence charged in such affidavit; and unless the jury believe from the evidence that such commitment by the St. Louis court of criminal correction was procured by the defendant by false and fraudulent testimony before the said court of criminal correction, the verdict must be for the defendant.”
This instruction, as drawn, was not correct, because it made the liabilities of the defendant to depend upon the fact that the commitment by the St. Louis court of criminal correction was obta>'' id by false and fraudulent testimony, and left out of view the question of the de
Under this rule, although the plaintiff may have been committed by the court of criminal correction, and ¡although the commitment may not have been obtained by false and fraudulent testimony, yet, if the defendant, nevertheless, did not believe the plaintiff to be guilty, he was liable. This element of belief on the part of the person instituting or instigating the prosecution, in ■the guilt of the accused, is an essential element in the definition of probable cause.
In Vansickle v. Brown (68 Mo. 627, 635), our supreme ■court considered this question at length, in view of the authorities in other jurisdictions, and overruling Hickman v. Griffin (6 Mo. 37), laid down the following rule: “That reasonable and probable cause which will relieve the prosecutor from liability is a belief by him in the guilt of the ■ accused, based upon circumstances sufficiently strong to. induce such belief in the mind of a reasonable and cautious man. And the question is not .simply whether the defendant believed that he had probable cause, nor is it alone whether there was in fact probable cause, but the question is, did the defendant believe the plaintiff was guilty and did he have reasonable grounds for so believing?” The above instruction wholly ignores this principle and makes the ■commitment of the examining magistrate a justification to the prosecutor or instigator of the prosecution,
IY. The definition of the term, probable cause, given by the court in the second instruction, was in substantial conformity with the definition of the supreme court above ■quoted ; and the definition embodied in the twelfth instruction, requested by the defendant, and refused, ignored the element of the defendant’s belief in the guilt of the plaintiff and was, therefore, incorrect and properly refused.
Y. The remaining objections question the rulings •of the court in refusing certain instructions offered by the defendant. It is sufficient to say that the court instructed the jury fully and fairly upon the whole case and no apt instruction was tendered by the defendant which was not covered by instructions which the court had already given.
The judgment will be affirmed; It is so ordered.