Peden v. Mail
| Decision Date | 07 March 1889 |
| Docket Number | 13,523 |
| Citation | 20 N.E. 446,118 Ind. 560 |
| Parties | Peden v. Mail |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled May 7, 1889.
From the Owen Circuit Court.
The judgment is affirmed, with costs.
D. E Beem, W. Hickam and G. W. Grubbs, for appellant.
I. H Fowler, S. O. Pickens, W. A. Pickens and J. C. Robinson, for appellee.
This action was commenced by Frederick B. Mail against Thomas A Peden to recover damages alleged to have resulted to the plaintiff by reason of a criminal prosecution, which it is charged the defendant maliciously and without probable cause instituted and caused to be prosecuted against him.
It appeared that Peden owned a large farm in Greene county, and that he formed a copartnership with Mail in the fall of 1881, in pursuance of which the latter moved on the Greene county farm in the spring of 1882. At the time the agreement was entered into each owned certain live stock, which it was agreed should be put into the partnership as firm property, and Peden was to furnish money with which to purchase other stock for the firm. He was to have his money back, with interest, and the profits were to be divided equally. Some differences arose between the parties, and on January 1st, 1883, a new agreement was signed.
Peden claimed that by the terms of this last agreement he became the owner of the stock, and that he had the exclusive right to make sales, while Mail insisted that the partnership in the stock continued as before, and that the effect of the new agreement was nothing more than to give the former a lien on all the stock to secure him for advances of money theretofore made by him. While this last agreement was in force, and under the claim that Peden was indebted to him on partnership account, Mail sold seven steers owned as above and appropriated the money. After learning of the sale, Peden demanded the money, which Mail refused to pay over. Under his claim of exclusive ownership, the former then drove off all of the stock which remained, which was of the value of about $ 1,500. Thereupon Mail instituted a civil suit against Peden in the Owen Circuit Court for an accounting, claiming that the latter was indebted to him in a large sum. He afterwards recovered a judgment for some $ 1,300.
In a few days after the civil suit had been commenced by Mail, Peden consulted the prosecuting attorney, upon whose advice, as he claims, he afterwards instituted a criminal prosecution against Mail, charging him in one count with the larceny of the seven head of cattle sold as above mentioned, and in another count with embezzling the money arising from the sale. After a trial Mail was acquitted.
Upon evidence tending to prove facts of which the foregoing presents but a brief summary, the plaintiff below recovered a judgment, from which this appeal is prosecuted.
The appellant complains that the court admitted in evidence the pleadings in the civil suit instituted by the plaintiff against him a short time prior to the commencement of the criminal prosecution which gave occasion for this suit. There was no error in admitting these in evidence. It was a part of the plaintiff's case to show that the criminal prosecution was instituted against him without probable cause. The verdict and judgment of acquittal were sufficient to raise the presumption that the plaintiff was not guilty of the crime charged against him, but it was incumbent on him to go further, and by putting all the facts and circumstances which led up to the prosecution before the jury, make it appear that it was instituted without probable cause. If, as a matter of fact, a criminal prosecution is instituted for some collateral purpose, and as a means of coercing another to surrender some right or claim which he makes, regardless of whether or not the person against whom it is commenced has committed a criminal offence, the prosecution so begun is without probable cause. Paddock v. Watts, 116 Ind. 146, 18 N.E. 518; Kimball v. Bates, 50 Me. 308.
It was therefore competent to show the institution of the civil suit a few days before the criminal prosecution was commenced, in order to show a motive for the prosecution other than the belief that the plaintiff...
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