Wilkinson v. Arnold
| Decision Date | 22 November 1858 |
| Parties | Wilkinson v. Arnold |
| Court | Indiana Supreme Court |
From the Putnam Court of Common Pleas.
The judgment is reversed with costs. Cause remanded for a new trial.
J. P Usher, for appellant.
D. E Williamson, for appellee.
Action for malicious prosecution.
The complaint charges that the defendant below, Wilkinson, maliciously, and without probable cause, instituted a prosecution against the plaintiff, before a justice of the peace, upon a charge of the larceny of some corn, upon which charge the plaintiff was arrested and required to give bail for his appearance before the justice, and that upon the day set for trial the prosecuting attorney dismissed the prosecution; whereupon it was adjudged by the justice that the plaintiff go thence acquit of said charge.
The defendant filed an answer of four paragraphs, all of which led to issues of fact. Trial by jury, and verdict and judgment for the plaintiff below, over a motion for a new trial. The points mainly relied upon by the appellant, Wilkinson, for the reversal of the case, are--1. That the Court rejected proper evidence offered by him; and, 2. That the Court refused proper instructions asked by him, and gave improper instructions. Exceptions were duly taken to the several rulings of the Court.
The corn charged to have been stolen appears to have been claimed by one John Wilkinson, and also by the plaintiff below, the latter having taken it from the stalks in the field where it was growing. The offense, on the supposition that the corn belonged to Wilkinson, and not to the plaintiff, could not have been a felony, but at most a misdemeanor. Vide 2 R. S. 1852, p. 446, § 76. On the trial, the defendant offered to prove by John Wilkinson, and also by the justice before whom the prosecution was instituted, that, at the time the prosecution was commenced, he informed the justice that he had detected the plaintiff in clandestinely pulling and carrying away the corn in question, and that he desired to commence a prosecution therefor, if it was in violation of the criminal law of the state, and that the justice after examining the statute, informed him that it was a larceny and that thereupon the justice drew up the affidavit for that crime. He further offered to prove by the justice, that he, the justice, drew the affidavit in good faith, intending to draw it so as to properly charge the plaintiff with...
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