28 Neb. 196 | Neb. | 1889
This is a proceeding in error to the district court of Douglas county. The action in that court was instituted by defendant in error for damages growing out of an alleged malicious prosecution by plaintiff in error on a charge of embezzlement, instituted in the police court in the city of Omaha. It was alleged in the petition that said prosecution was malicious, without probable cause, and in pursuance of a conspiracy entered into between plaintiffs in .error for the purpose of injuring defendant in error, and getting him out of a business in which he was engaged in connection with plaintiff in error Adams, in order that plaintiff in error Tucker might be substituted in his stead; that he was arrested and deprived of his liberty, and upon final trial discharged, and the prosecution ended; that by such prosecution he had been damaged in the sum of $1,000. The answer was a general denial. A jury trial was had, which resulted in a verdict in favor of defendant in error for the sum of $72.08. A motion for a new trial was filed, alleging the following grounds therefor:
“First — The verdict is not sustained by sufficient evidence.
“Second — The verdict is contrary to law and the instructions of the court.
“Third — The court erred in refusing to give paragraphs four, six, and eight of instructions asked by defendant.”
This motion was overruled, and judgment entered on the
From the evidence submitted to the trial jury it appears that defendant in error and plaintiff Adams were engaged in business together in the city of Omaha, the contract between them being, in effect, that defendant in error should have charge of the business, managing all of its concerns, collecting and disbursing its moneys, and for his services in that behalf was to receive a salary of $40 per month, and in addition thereto a percentage of the profits of the business. So far as the eastern correspondence was concerned, the business was conducted in Adams’ name, and he maintained an oversight over the books and financial interests of the business. It appears that some little dissatisfaction arose when it was decided by Adams to terminate the contract with defendant in error and substitute, in his stead, his co-plaintiff in error, Tucker. Tucker, to some extent, took charge of the business and conducted it for awhile, in connection with defendant in error, and finally, on the 6th day of July, defendant in error removed
There was some evidence tending to show that after the arrest of defendant in error, which had occurred at the usual place of business where he had been engaged in connection with plaintiff in error, that he, with the policeman making the arrest, immediately went to the office of plaintiff in error Adams, and demanded an explanation, when he was informed that if he would pay the money which it was alleged he had collected, -plaintiff in error Adams would do what he could to relieve him from the prosecution.
Eor the purpose of reviewing the verdict of the jury and the judgment, it must be conceded that there was at least some evidence submitted that defendant in error believed that Mr. Adams was indebted to him and that he credited the money received upon such indebtedness; that his last month’s wages had not been paid and' that he had the right to so pay it. The contract entered into between the parties during the-preceding March was introduced in
Plaintiff in error asked the court to give to the jury the following instruction, which was refused, and to which they excepted:
“ Probable cause means a state of facts that would lead a man of ordinary prudence and discretion to entertain an honest belief in the guilt of the accused.
“If you shall find that the defendants, at the time of filing the complaint against the plaintiff, believed and had reasonable ground for their belief, that plaintiff, knowing that defendant Adams was not "indebted to him, appropriated to his own use the money he was charged with embezzling, then you will find for defendants.”
The first subdivision of this instruction was substantially given by the court on its own motion, in the fifth instruction given, which was, if there be any difference, more favorable for plaintiffs than that asked by them, and was quite sufficient for this part of the case. This was as follows:
“ Reasonable or probable cause, within the meaning of the law, may be defined as a reasonable amount of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in believing that the accused is guilty. But mere suspicion alone is not sufficient.”
We find no error in the case calling for reversal of the judgment. It is therefore affirmed.
Judgment affirmed.