Engelke v. Chouteau

• Decision Date: 18 November 1889
• Citation: 98 Mo. 629,12 S.W. 358
• Parties: ENGELKE v. CHOUTEAU.
• Court: Missouri Supreme Court

12 S.W. 358

98 Mo. 629

ENGELKE v. CHOUTEAU.

Supreme Court of Missouri.

November 18, 1889.

MALICIOUS PROSECUTION — EVIDENCE.

In an action for malicious prosecution, the petition alleged that defendant had maliciously procured and prosecuted an indictment against plaintiff. The evidence showed that defendant was a member of the grand jury which had found the indictment, but failed to show that plaintiff

was prosecuted under it, although it did show that defendant had employed an attorney to help prosecute another person who had been indicted jointly with plaintiff, and who had been tried separately and acquitted, a nolle prosequi being afterwards entered in case against plaintiff. Held, that defendant's demurrer to the evidence should have been sustained.

Appeal from St. Louis circuit court; ELIJAH ROBINSON, Judge.

Hitchcock, Madill & Finkelnburg and Valle Reyburn, for appellant. Frank J. Bowman, for respondent.

BRACE, J.

This was an action for malicious prosecution, in which Charles P. Chouteau, John M. Glover, and Joseph Livingston were made defendants. The cause was dismissed as to Glover and Livingstone. The petition contained two counts. In the first count the defendants are charged with having maliciously procured the indictment of the plaintiff by the grand jury of the city of St. Louis for an alleged fraudulent conspiracy with one Edward P. Barrett to defraud one Alice Livingston and others interested in a certain corporation known as the Windsor Hotel Company, and with having after the finding of said indictment, without probable cause, maliciously prosecuted said indictment against the plaintiff. In the second count the defendants are charged with having maliciously caused the arrest of the plaintiff, and his prosecution upon a false affidavit and complaint for the same alleged fraudulent conspiracy. The defendant Chouteau answered denying all the allegations of the petition. On the issues joined between him and the plaintiff, the jury found for the plaintiff on the first count, and assessed his damages at $7,500, and for the defendant on the second count. The defendant appeals.

At the close of the plaintiff's evidence the defendant asked an instruction in the nature of a demurrer to the evidence, and at the close of all the testimony asked a like instruction. The jury having found for the defendant on the cause of action set up in the second count of the petition, all questions arising upon the trial of that issue are eliminated from the case. The question whether the demurrer to the evidence upon the first count should have been sustained, if resolved in favor of the defendant, is decisive of the case, and will be first considered.

On the 18th of July, 1882, the grand jury of the criminal court of St. Louis returned into said court an indictment against Charles H. Peck, Edward P. Barrett, and Bernard H. Engelke, charging them with a fraudulent conspiracy to cheat and defraud Sallie A. Livingston, Joseph H. Livingston, and the Windsor Hotel Company of their and its property, by means of a certain promissory note, and deed of trust in the nature of a mortgage to secure the same, executed by the said Bernard H. Engelke in the name of said company, by him as president thereof, on the 27th of February, 1882, and by a subsequent sale thereafter made of said property under said deed of trust. The defendant Charles P. Chouteau was a member of that grand jury. The offense charged in the indictment being a misdemeanor, it was certified to the court of criminal correction, under the statute, and was filed in the office of the clerk of that court on the same day that it was returned. On the 22d of July, 1882, the said Peck commenced a civil action against Chouteau, growing out of some transactions connected with the Vulcan Iron-Works, a corporation in which both of them had theretofore been interested. Depositions were being taken in this case from time to time between that date and the 1st of September following. On one occasion, about the latter date, when the parties were thus engaged, the fact that Peck had been indicted was alluded to by some one present. Peck, in a threatening manner, replied, "Yes; and Mr. Chouteau was at the bottom of it, and I will make him smart for it," or "somebody will have to suffer for it." Judge Madill, who was of counsel for Chouteau, and engaged in taking the depositions, replied to this remark: "Mr. Peck, that is a very broad statement to make." Judge Madill and Mr. Chouteau, after leaving the office of Mr. Woodward, where the depositions were being taken, went to Judge Madill's office, where Mr. Peck's language became the subject of conversation between them.

Judge Madill, in his evidence, thus states what then passed between them: "In reply either to an inquiry or a remark which he [Chouteau] made, I said that I construed the remark of Mr. Peck to mean that if the indictment were out of the way he would institute a suit against Mr. Chouteau; Mr. Chouteau having been a member of the grand jury which found this indictment. He asked me what I thought he ought to do about it. I told him I thought he owed it to himself and to the gentlemen who were associated with him on that grand jury to see that that indictment, when it came on for hearing, was fairly and properly presented to the court in which the indictment was found. He asked me what I would suggest in the way of securing that result. I said to him I thought he ought to employ some reputable lawyer, not a member of the criminal bar, who should see that what I had suggested was done; that is to say, that the case was presented in such a way as to develop what was in it, and thereby justify the action of the grand jury."

In pursuance of this suggestion, a short time after this interview the defendant employed Mr. John M. Glover. The extent of his employment was shown by the following evidence of Mr. Chouteau in a deposition, and as preserved in a bill of exceptions on a former trial in the case of Barrett v. Chouteau, 94 Mo. 13, 6 S. W. Rep. 215, introduced by the plaintiff. Mr. Chouteau was asked: "Question. Was you one of the grand jury that returned the indictment against Mr. Charles H. Peck, Mr. Engelke, and Mr. Barrett, on or about the 18th of July last? Answer. I was. Q. Did you employ Mr. John M. Glover to prosecute the indictment against Mr. Peck, Mr. Engelke, and Mr. Barrett? A. I did not." The witness' attention was then called to the following answer made by Mr. Glover in a deposition given by him in this case: "I was last employed in the prosecution of Peck, Engelke, and Barrett under the indictment of conspiracy to defraud that was tried before Thoroughman;" and he was asked whether that statement was true or false: "Answer. Mr. Glover was not employed to prosecute any suit, — simply to see that the indictment was fully and fairly laid before the court; nothing more." In his examination in the Barrett Case, Mr. Chouteau was asked why he testified in his deposition, before he knew that Mr. Glover had given his deposition in the case, that he did not employ Mr. Glover to prosecute the indictment against Mr. Peck, Mr. Engelke, and Mr. Barrett, and his answer was: "It is because you couple the three names together. My employment of Mr. Glover was, as against Mr. Peck, nothing whatsoever with regard to the other two. Question. You had it in mind when you answered that there was but one indictment? Answer. That is my impression; there was only one indictment." Witness was then asked whether he did not employ Mr. Glover to prosecute that indictment. Witness answered that there was a severance of the parties, though not at the time when Mr. Glover was employed, and continuing said: "Mr. Glover was employed, as I stated before, as against Mr. Peck; but in regard to the two others, Mr. Barrett and Mr. Engelke, nothing — I knew nothing about these gentlemen. I had no cause of complaint against them." "Those names were never mentioned, either by myself or Mr. Glover. Question. Did you ever employ Mr. Glover to prosecute either Mr. Barrett or Mr. Engelke under that indictment? Answer. Never. Q. Do you know whether, as a matter of fact, either of them were prosecuted by him under that indictment? A. I do not. I mean by that, personally I know nothing about it."

On the 15th...