Motley v. Dugan
| Decision Date | 20 November 1945 |
| Docket Number | 26809 |
| Citation | 191 S.W.2d 979 |
| Parties | MOTLEY v. DUGAN et al |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Taylor Smith, of Farmington, and R. E. Kleinschmidt, of Hillsboro for appellants.
Samuel Richeson, of Potosi, for respondent.
ANDERSON
This is an appeal from a judgment for plaintiff in a suit for malicious prosecution.
On January 23, 1943, a little girl about 12 years old took a pocketbook belonging to Mrs. Ivan Nixon, at a dance in DeSoto, and a short time thereafter gave a portion of the money to Francis Streible, Jr., a boy about 12 years of age. Shortly thereafter Francis Streible, Sr., father of the boy was arrested, and confessed to having a part of the stolen money in his possession. The arrest was made at the home of Frank Medley, Streible, Sr.'s stepfather, by plaintiff, who at the time was chief of police of DeSoto and deputy sheriff for Valle Township, in Jefferson County, and who had been working on the case with state patrolman Crockett and the night marshal, Mr. Hulsey. At the time of the arrest Streible had on his person two ten dollar bills. A question arose as to what to do with the money, whether Streible should take it with him to the police station, or leave it with his mother at the Medley home. At the time plaintiff told Streible that 'If that is stolen money, you take it with you; but if it is not stolen money, it is all right to leave it here.' Whereupon Streible replied: 'It is my hard earned money.' Plaintiff at the time believed that Streible was telling the truth, and permitted him to turn the money over to his mother. Streible then was turned over to the state highway patrol, and was taken by them to their headquarters in Kirkwood. Here Streible confessed to having received a part of the stolen money. Plaintiff was notified of Streible's confession, and thereafter went to the Medley home, where he got back the money from Medley, after telling Medley that Streible had confessed, and that the state patrol would probably come and get the money from him. He made no threats in obtaining the money, according to Medley's testimony. Upon receiving the money, plaintiff gave Medley a receipt for same. Thereafter he informed several of the other officers of that fact.
Later, but on the same day, February 1, 1943, defendant Dugan, constable of Valle Township, and his deputy, William Bates, also a defendant in this case, called at the Medley home. Medley testified that when they came to his home, they begged him to make an affidavit to have plaintiff arrested, but that he refused to do so. Defendants Dugan and Bates then drove to St. Louis. According to their testimony, the main purpose of their visit was to check the police records in St. Louis of a man named Trunk, who was being held on a criminal charge in Hillsboro. After checking the police records at the third district police station, they drove to the home of the Streibles, who lived in St. Louis, arriving about 9:30 or 10 p.m. Francis Streible, Sr., testified that when they arrived they asked him if he knew that plaintiff had gone to his stepfather's home and secured the money that he had left with them. His reply was that he did not, and he asked them: 'What do you think I could do about it to get this money back?'; that defendants replied that the only thing they knew was that he could have a warrant sworn out for him and have him arrested. Streible then asked what crime he could charge plaintiff with, and they told him the crime of extortion. Streible did not know what was meant by extortion, so they explained it to him. Streible then told them he had to go to DeSoto the next day, and that he did not have enough money for a railway ticket for both his wife and himself, whereupon defendants suggested that he and his wife ride back to DeSoto with them. They accepted the offer, and after a short stop at the Third District police station they proceeded to DeSoto, arriving there around 11:30 or 12 p.m. On the way to DeSoto defendant suggested that it would not be necessary that the Streibles tell anyone how they had come to DeSoto. Streible requested that he be taken to the home of Judge Giles, a justice of the peace. When they arrived there the justice was in bed, but got up and let them into the house. Streible then told the justice that he wanted to swear out a warrant against the plaintiff for taking the money from his mother. He explained the matter to the justice, telling him that it was his money. He asked Giles if he thought he could have plaintiff arrested for what he had done, and Giles said he thought he could. Giles then prepared the affidavit for Streible to sign, which he did, and Giles issued the warrant and delivered the same to defendant Dugan. According to the testimony, Dugan and Bates took no part in the discussion at the Giles home, and were not present in the room at the time. Bates upon his arrival went to the judge's kitchen where he raided the icebox, and Dugan remained in a little side room. The defendants and the Streibles left the Giles home about 2:30 a.m., and at 3 a.m. defendants arrested plaintiff on the warrant which had just been issued. Plaintiff at the time was at home and in bed. Defendants then took plaintiff to Hillsboro, after refusing his request to stop at Theodore's cafe to arrange for bond, and after refusing his request to see his assistant, the night marshal, Mr. Hulsey. When the party reached Hillsboro, defendants drove to the home of the chief deputy sheriff, and then drove to the county jail, where plaintiff was incarcerated.
The record further shows that shortly after plaintiff's arrest, plaintiff's wife communicated with Mr. Hulsey, who in turn called the sheriff on the telephone. The latter then went to the jail and ordered that plaintiff be let out of jail. Plaintiff then went to the sheriff's office where bail was arranged.
Later plaintiff took a change of venue in the case from Justice Giles to Justice Rouggly. At the preliminary hearing before Justice Rouggly, plaintiff was exonerated and discharged.
Appellants first urge that the court erred in overruling defendants' demurrer to the petition, and in support of their contention say that since the petition alleged that the affidavit and complaint which was filed before the justice charged plaintiff with having extorted from Frank Medley and Lizzy Medley the sum of $ 20, and then alleged that plaintiff was exonerated at the preliminary hearing on said charge, the petition failed to allege an ending of the prosecution. They base their contention on the theory that the charge alleged was a misdemeanor, and not a felony, and that therefore the further allegation that he was discharged on preliminary hearing was not an allegation of a legal ending of the prosecution, because one can be discharged from a misdemeanor only by jury trial, or by the court after a waiver of a jury trial. The fundamental error in this line of reasoning is in assuming that the affidavit and warrant charge a misdemeanor. Under sections 4450, 4451, and 4452, R.S.Mo.1939, Mo.R.S.A. §§ 4450, 4451, and 4452, the crime of extortion is defined as a felony regardless of the amount involved.
Appellants next urge that the petition is defective because there was no allegation that either of the defendants had made a false affidavit or wrongfully prosecuted plaintiff. The petition did allege that 'defendants maliciously intending to injure plaintiff in his good name and reputation did falsely and wrongfully procure one Francis Streible to appear before G. W. Giles, a Justice of the Peace in and for Valle Township in said County, and without any probable cause whatever did falsely and wrongfully cause and procure the said Francis Streible to make an affidavit and complaint before said Justice charging plaintiff with having extorted from Frank Medley and Lizzie Medley the sum of Twenty ($ 20.00) Dollars.' The foregoing allegations are sufficient to charge defendants with being actively instrumental in putting the law in motion. To make a case of malicious prosecution, it is not necessary...
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