63 Iowa 627 | Iowa | 1884
The plaintiff avers that defendant maliciously and without probable cause procured him to be indicted and prosecuted on a charge of grand larceny. The alleged lar
It is not often that a witness, after the lapse of any considerable time, can testify to the exact words of a conversation, unless he made a memorandum of them, or made a special effort to fix them in his memory. But testimony in regard to a conversation is not necessarily to be rejected, though the witness disclaims his ability to remember the words used. If the subject of the conversation was such that the witness might easily misunderstand it, testimony which did not purport to give the words used would of course be less reliable, and possibly, in an extreme case, the court would be justified in excluding the testimony. But this, we think, is not such a case. Had the witness stated what words were used, his testimony, we think, would have been scarcely more satisfactory. We think that the court did not err in not excluding the portion of the deposition objected to. Some other testimony of a similar character was objected to; but what w'e have said above we think disposes of the objection.
The defendant’s counsel has evidently fallen into some confusion respecting the instruction asked. In his argument, he claims that the jury found that a portion of the property was sold after the consent was withdrawn. But that is no reason why the instruction asked should be given, if the court of its own motion gave an instruction which announced, in sub
The prosecution of an innocent person, without using reasonable care to ascertain the facts, is certainly not justifiable, and this is all that the court held. Whoever institutes a criminal prosecution should have probable cause for doing so, and probable eause is defined in a well considered opinion in Barron v. Mason, 31 Vt., 189, as “ such a state of facts and circumstances as would lead a careful and conscientious
YI. It is finally urged that the verdict is excessive. But we see no abuse of discretion, and it must be allowed to stand.
Affirmed.