8 Mo. 339 | Mo. | 1844
delivered the opinion of the Court.
This was an action for a malicious prosecution, instituted by Vanmeter against Williams, in which Vanmeter had a verdict and judgment.
It is deemed' unnecessary to set out the various counts in the declaration, as the point made by the defendant below, (Williams) in relation to the refusal of the court to strike out the second count, was abandoned on the argument of the cause.
On the trial in the court below, the plaintiff offered in evidence a warrant issued by J. N. Laurie, a j ustice of the peace, directed to the constable of Boonville city, reciting, that whereas information, on oath, had been given to him by F. A. Williams, that Robert Vanmeter, an able-bodied man, who, not having wherewithal to support himself, is found loitering about, and commanding him to take the body of the said Vanmeter, and bring him before the justice, to be dealt with according to law.
The said Laurie was then introduced as a witness, who testified, that Williams, at the time the warrant was issued, asked him if he had ever examined the vagrant law? to which the witness answered, he had not; that witness and Williams then examined the statute relative to vagrancy, and Williams inquired of the witness what he thought of the plaintiff, Vanmeter, and if he was not subject to said law? Witness answered said enquiry, but the court would not permit the witness to state what his answer was, to which the counsel for the defendant excepted.
The witness then testified, that after he had returned an answer to Williams’ question, Williams put his finger on the first section of the vagrant act, and observed, “I give the information.”
1. That if the jury believe, from the evidence, that the prosecution by defendant of the plaintiff was without probable cause, then they may infer that the prosecution was malicious, and if they so find the facts, they ought to find for the plaintiff.
2. That the discharge of the plaintiff, by the examining magistrate, is presumptive evidence of want of probable cause.
To these instructions the defendant excepted.
The defendant then asked the following instructions: — ■
1. That unless the jury believe that the defendant was instigated by malice, and also, that there was no probable cause for the prosecution, that then they must find for the defendant.
2. That in this case it is not necessary to prove that the plaintiff was a vagrant, and if there was any probable cause for the prosecution, they must find for the defendant.
3. That is is incumbent upon the plaintiff to prove both malice in the defendant, and a want of probable cause for the prosecution.
4. That the acquittal of the plaintiff, by the justice of the peace, is not sufficient in itself to show the want of probable cause.
The court gave all these instructions but the third, the refusal to give which was excepted to by the defendant.
The first point made by the defendant was, that the court erred in admitting the warrant in evidence, as there was a variance between it and the declaration.
The declaration alleges, that the defendant falsely and maliciously, and without any probable cause, charged the plaintiff with a certain offence punishable by law, to wit, vagrancy. It is not denied but that the allegation in the declaration is sufficient. But because the offence is not legally set forth in the warrant, therefore it is urged, that it should have been rejected as evidence. It is not perceived on what ground this exception is founded. The conduct of the defendant gives the cause of action; he lodges the information with the officer issuing the process; and because that officer commits an error, and insufficiently describes the offence in his warrant, is his conduct thereby palliated or justified? The injury to the accused is the same whether the warrant is legal or illegal. The defendant is the cause of the prosecution, and will he be heard to say, that although he did all he could in furtherance of it, yet as the officer erred in describing the offence for which the prosecution was instituted, is he therefore excused? If an information of one offence was given, and a warrant issued for another offence entirely different, and a suit was instituted for a malicious prosecution of the offence described in the warrant, it would fail, as it would not appear that the prosecutor had given the information which caused the issuing of the process. But that is not this case. It sufficiently appears that the warrant was intended to arrest the plaintiff for the offence communicated by the defendant, and because it is not legally set forth, it cannot avail him. — Miller vs. Brown, 3 Mo. Rep.
The refusal of the court to give the third instruction asked by the defendant is also assigned for error. It cannot be denied but that instruction asserted a correct legal principle. In an action for a malicious prosecution, the plaintiff must show
It was contended by the defendant, that the second instruction given at the Instance of the plaintiff was erroneous, inasmuch as it conveyed the idea that the bare acquittal of the plaintiff by the justice was evidence from which the jury might infer a want of probable cause. It cannot be maintained that, in an action for a malicious prosecution, proof that the defendant instigated it, and a production of the record of acquittal, will entitle the plaintiff to a verdict. However, but slight evidence of the want of probable cause is exacted of the plaintiff, as it involves a negative; but we are not aware that the bare production of the judgment of acquittal has ever been held sufficient for that purpose. The acquittal, together with the circumstances under which it was effected, may be sufficient, as jn the case put, where, upon the calling of the cause, the prosecutor, who was in court, absented himself. It was left to the jury to infer the motives of his withdrawal, and they were charged, that they might infer the want of probable cause from such conduct. An acquittal is evidence of the want of probable cause to go to the jury, but of itself, and unaccompanied with any circumstances, would not be sufficient.
When instructions are given by the court, although taken separately, each might be exceptionable; yet if, taken together as a whole, they contain a correct exposition of the law of the case, the judgment will not be reversed. Whatever objection might have been urged to the instruction complained of, and although of itself it might have conveyed an erroneous idea of the law, yet, taken in connexion with the fourth instruction given at the instance of the defendant, the ground of complaint is removed. The two instructions were not contradictory, but, taken together, they furnished a correct exposition of the law.
The judgment of the court below is also sought to be reversed, because the court refused, as evidence, the answer given by the justice to the inquiry of the defendant, what he (the justice) thought of Vanmeter, and if he ivas not subject to the vagrant law ? It is contended, that the answ er of the witness should have been received as explanatory of what was afterwards said by the defendant. Courts cannot be too cautious in receiving testimony irrelevant in itself, and of a character to bias or mislead the jury. But however important a rigid observance of this caution may be, it cannot be carried so far as to prevent a full disclosure of whatever may be necessary to explain declarations or acts, the subject of judicial inquiry. If testimony, otherwise inadmissible, is offered for this purpose, it should be received with a direction by the court to the jury of the object of its introduction, and a charge that it is inadmissible for other purposes in the cause. In the case of Hawkins vs. The State, 7 Mo. Rep., it was held, that the questions asked by a negro of a white person were admissible in evidence, in order to a correct understanding of the answers. The questions were not regarded as hearsay
Judgment affirmed.