33 P. 341 | Cal. | 1893
Action for malicious prosecution of the plaintiff on a charge of having bought and received stolen property, for which he was tried in the police court and discharged. The jury returned a verdict for plaintiff, assessing his damages at $3,333, for which sum judgment was rendered. The defendant brings this appeal from an order denying his motion for a new trial.
1. Counsel for appellant contend that the court erred in its instruction to the jury as to what constitutes probable cause for the criminal prosecution complained of. The exception upon which this point rests was taken at the close of the instructions given, and was in the following language: “I desire to except .... to your instruction to the jury as to what constitutes probable cause, and your refusal to instruct, the jury that it is for the court to determine what probable cause is, and not for the jury.” Waiving the indefiniteness of the exception, it is a sufficient answer to this point that the court did instruct the jury as to what would constitute probable cause substantially as requested by defendant’s counsel, and very nearly in the same language. Besides, the court was not requested to instruct that it was for the court, and not the jury, to determine what is probable cause; and consequently did not refuse so to instruct.
2. It is claimed that the evidence does not justify the finding of malice on the part of the defendant in causing plaintiff to be arrested, for the reason that the defendant acted on the advice of a police officer. But the evidence tends to prove that defendant did not state to that officer all the material facts within his knowledge bearing upon the question of malice, and that the officer did not know all such facts. It is, therefore, unnecessary to decide whether the advice, of the police officer would have shielded the defendant from the charge of malice under any circumstances.
3. It is claimed that the court erred in sustaining an objection to a question asked plaintiff by defendant’s counsel on cross-examination. But afterward, when the plaintiff was called in rebuttal, he was fully examined by defendant’s counsel as to the same matter in relation to which the objection had been sustained. This cured the alleged error, if it was error.
5. Another ground upon which a new trial is asked is that of misconduct of the jury, in that eleven of the jurors were induced to assent to the verdict by a resort to the' determination of chance. This point is supported by the following affidavit of a juror, to which there is no counter-affidavit:
“ [Title of Court and Cause.]
“State of California,
• City and County of San Francisco—ss.:
“J. P. Larsen, being first duly sworn, says on oath: I am one of the jurors who were impaneled to try the above-entitled action. Said cause came on for trial on the 24th day of March, A. D. 1890, and was submitted to the jury for their verdict on the 25th day of March, A. D. 1890. Eleven of said jurors rendered their verdict in favor of plaintiff for the sum of $3,333 on the said last-mentioned day. When the*14 jury retired under the charge of the sheriff to consider their verdict in said case, some of the jurors considered the propriety of giving the sum of $10,000 damages, and one was in favor of rendering a verdict of $1 in favor of plaintiff. Being unable to agree as to the amount of their verdict, it was then agreed by and between said jurors that their verdict should be arrived at in the following manner, and that they should be bound by the result, to wit: That each juror should write on a slip of paper the amount to which he thought plaintiff was entitled, and, after doing so, their amounts should be added together and divided by twelve, and the quotient resulting therefrom, whatever the same should be, should be the verdict of said jury. That thereupon each of said jurors other than H. McCabe wrote down on a slip of paper the amount which he thought plaintiff was entitled. Some amounts of which were in excess of $5,000, the amount demanded by plaintiff. Said amounts were then added together and divided by twelve, the result of said division being the sum of $3,333, the amount of verdict by said jury. That when the division aforesaid resulted in a quotient of $3,333, such was taken as their verdict, in pursuance of said prior arrangement to be bound by said result, without, further consultation or assent among them.
“J. P. LARSEN.”
“Subscribed and sworn to before me, this 10th day of May, A. D. 1890.
“H. P. TRICOU,
“Notary Public.”
On the authority of the late case of Dixon v. Pluns, decided by the court in bank, and filed May 31, 1893, 98 Cal. 384, 35 Am. St. Rep. 180, 20 L. R. A. 698, 33 Pac. 268, I think this affidavit shows that the verdict was determined by chance, in the sense of the second subdivision of section 657 of the Code of Civil Procedure, and, therefore, that the affidavit of the juror was admissible as evidence of the fact. But, inasmuch as the ease of Dixon v. Pluns, supra, overrules the case of Turner v. Water Co., 25 Cal. 397, on the authority of which respondent’s counsel appear to have confidently relied, I think respondent should have an opportunity to file counter-affidavits to that of the juror Larsen, and that
We concur: Belcher, C.; Temple, C.
For the reasons given -in the foregoing opinion the order refusing a new trial is reversed, the cause remanded, and the lower court instructed to rehear and decide the motion for new trial on the alleged .ground of misconduct of the jury alone, and upon such rehearing to admit and consider such additional pertinent affidavits as may be filed by either party within twenty days after the filing of the remittitur.