96 Wis. 22 | Wis. | 1897
We perceive no error in admitting in evidence the letter written three or four days before the issuance of the warrant to the plaintiff by the cashier of the-bank, in behalf of the defendants, requesting her to call at the bank, or the store of the defendants, and pay an account of $2.26 at once, “and save the trouble of taking other steps to collect it.” There is sufficient evidence tending to prove that the letter was written by the authority of the defendants. The admission of evidence as to the age of the plaintiff, and that her parents were both dead, appears to have been without objection. There was no error in admitting the testimony of the plaintiff’s brother-in-law, to-
We think the evidence is sufficient to sustain a finding to the effect thát the prosecution against the plaintiff was actually commenced, and that in the pursuance thereof she submitted herself to the jurisdiction of the justice. The evi
There are seventeen assignments of error for refusing to charge the jury. Several of them are overruled upon the principles already stated. Several of them relate to a single isolated feature of the case, having its significance in connection with other evidence and circumstances in the case, and hence were properly refused. Such isolated facts or items of evidence could not properly be thus eliminated from the case, as a matter of law, by the trial court. The court properly charged the° jury to the effect that the plaintiff must prove, in order to maintain this action, that the prosecution was instituted by the defendants maliciously and without probable cause; that both of these facts must concur; that the want of probable cause is a material averment and, though negative in its character, must be proved by some affirmative evidence, unless the defendants dispense with the proof by pleading the truth of the facts involved in the action; that it is independent of malicious motive and cannot be inferred as a necessary consequence from any degree of malice that may be shown (Newell, Mal. Pros. 246, § 12; 14 Am. & Eng. Ency. of Law, 17); and that both questions "were questions of fact to be determined by the jury from the evidence given on the trial. In .another connection the court, after charging the jury to the effect that, if a prosecutor fully and truly states the facts of which he complains to some one learned in the law and admitted to practice in the courts of record of the state, and is advised by him that such facts constitute a criminal offense, for which he then prosecutes, such counsel drawing the complaint for the crime
The learned trial judge may, as suggested bjr counsel on the argument, have been misled into so charging the jury by some things inadvertently said in Lueck, v. Heisler, 87 Wis. 644. That case was correctly decided. As there, in effect, held, a criminal prosecution for the purpose of collecting a debt, or to secure some other private or ulterior benefit, is evidence of malice, and may, in certain cases, be conclusive. Spain v. Howe, 25 Wis. 625; Magmer v. Renk, 65 Wis. 364. But such prosecution for such purpose, though malicious, does not of itself constitute malicious prosecution. To be malicious prosecution, it must be without probable cause. Malice may be inferred from a want of probable cause. Newell, Mal. Pros. 240, 247, §§ 10, 13, 14. As to what, in a legal sense, constitutes malice, is a question of law for the court; “ but the question of the existence of the circumstances which go to make up the essential elements of malice in a particular case is purely a question of fact, and is for the jury to determine.” Id. §15. The same learned author says: “Malice
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.
