72 Mo. App. 199 | Mo. Ct. App. | 1897
The defendant’s version of the matter was as follows -.
“Commodore Swearingen and he were scraping out a pond; when I went in I went up where they were. I stopped and spoke and told Mr. Swearingen my business, and we went off to transact our business; I tied my team up by the fence in the timber, and Warren still scraping at the pond when I went up, and when I come back and was unhitching the team, Mr. Swearingen started to go back to his work — and he come, Warren come tearing around in front of me, with a knife in his hand; he said, ‘Now, God damn you, I have got you where I want you, get down in your jeans and shell her out.’ I said ‘what do you mean?’ He said, ‘I want that money, you know what I want, just run in your pocket and get her out’ and he kept repeating it and kept walking up with the knife in his hand (could not tell whether it was open), I said, how much do you want? He said, a dollar and a quarter. I said, for that corn you cut? I said you never finished out a shock row of corn; if*202 you. had finished out a shock row, I would not owe you a dollar and a quarter until you do. He said, Shell her out, I said I don’t think I ought to give you a dollar and a quarter for it; he said then, how much? I said from the way you cut and what work you done there, if you was working right and fair you would not get over seventy-five cents for it anyhow, he said, give me seventy-five cents, all the time he kept the knife in his hand down by his hip, I could not tell whether he had it open, I did not expect anything else but what he was going to cut me with the knife. • I did not look for anything else; I got out the money, I hadn’t only á dollar in change, I had no smaller change than a dollar; I got Mr. Commodore Swearingen to go to the house and get the change, and he brought back the change and gave Warren seventy-five cents.”
Swearingen testified in plaintiff’s behalf that “he (plaintiff) did not say he would rip him open; he said he would knock the side of his head off, or something of that kind. -He did not have his knife open; he had his knife in his hand, where he had been fixing a chain, and just had his knife in his hand; he did not say he would rip him open, at all.” He was asked whether “Flood was very trembly when he handed the money out, his hand shook like a palsied man?” and answered: “Well, some little, yes, sir.”
Defendant on the next day went into Plattsb'urg, the county seat of Clinton county, and placed the matter before the prosecuting attorney. That officer advised him to have plaintiff arrested for robbery and went with him to a justice of the peace whose office was near by. The prosecutor asked the magistrate to write out an affidavit charging plaintiff with robbery. The magistrate did so and defendant swore to it. A warrant for plaintiff’s arrest was then made out and delivered to an officer. Plaintiff was arrested and
We have stated that defendant placed the facts fully before the prosecuting attorney and was advised by him that he should have plaintiff arrested for robbery. This is not formally conceded. But we think it a fully established fact. Defendant so testifies. The magistrate before whom the proceedings were had testified that .the prosecutor came into his office with -defendant and requested him to write the affidavit charging plaintiff with robbery. The testimony of the prosecuting attorney is mostly uncertain and indefinite. He stated that he had so many matters of similar kind that he dismissed them from his mind as soon as determined. That this defendant and the magistrate knew better about it than he. We. think that to take the prosecutor’s testimony as a whole, connected with the conceded facts and the evidence of defendant and the magistrate, there is not a particle of doubt but that defendant stated the matter to the prosecuting attorney substantially as he stated it at the trial of this case and that the prosecutor advised the prosecution.
It is of no consequence in such case that defendant may have been moved by malice toward plaintiff; for “no malice, however distinctly proved, will make the defendant liable.” Sharpe v. Johnston, 76 Mo. 660; Christian v. Hanna, 58 Mo. App. 42. Whether there is probable cause in cases of malicious prosecution is a mixed question of law and fact; and where the essential facts are undisputed the court should declare the law upon them. Boogher v. Hough, 99 Mo. 183; Christian v. Hanna, supra; Hill v. Palm, 38 Mo. 14. It therefore should have been declared in this case, as requested by defendant, that plaintiff could not recover.
“There is no evidence which leads us to suspect that the defendant, a laboring man, doubted, or had cause to doubt, the soundness of the legal advice given to him, or suspected even when he signed and swore to the complaint prepared for him by a professional man, that there was a misnomer of the offense therein charged. To the defendant, then, it was a case of apparent guilt of theft, believed by him to be real; and this, according to the resolution of the judges, reported to the House of Lords by Lords Mansfield and Lough-*207 borough in the case of Johnstone v. Sutton, 1 T. R. 544, will not support an action for malicious prosecution, even though the most express malice be proved in the prosecutor. In other words, though there be malice, there is probable cause; and the former must concur with the want of the latter, to the maintenance of the action.”
In that ease the person advised with was not an officer. The case at bar ought to be much stronger for the complainant, since he consulted with the lawyer whose duty it was to advise concerning and to institute criminal proceedings.
The judgment, with the concurrence of the other judges, is reversed.