3 S.W. 577 (Mo. 1887), Peck v. Chouteau

Citation:3 S.W. 577, 91 Mo. 138
Opinion Judge:Black, J.
Party Name:Peck, Appellant, v. Chouteau et al
Attorney:James J. Lindley and F. J. Bowman for appellant. S. Hermann and G. A. Madill for respondents.
Case Date:February 28, 1887
Court:Supreme Court of Missouri

Page 577

3 S.W. 577 (Mo. 1887)

91 Mo. 138

Peck, Appellant,


Chouteau et al

Supreme Court of Missouri

February 28, 1887

Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner, Judge.


James J. Lindley and F. J. Bowman for appellant.

(1) The indictment of witness, Engelke, some eight years before, in the United States court, should not have been admitted in evidence. It was not the record of the conviction of an infamous crime; it was, at best, but a method of proving a specific charge. Seymour v. Farrell, 51 Mo. 97; State v. Breeden, 58 Mo. 507; State v. Shields, 13 Mo. 236. Proof of specific acts are not admissible to impeach the character of a witness. Conly v. Meeker, 83 N.Y. 618. (2) Indictment and sworn charges before a magistrate are not admissible to discredit a witness, when he is not shown to have been convicted thereon. People v. Gay, 7 N.Y. 378; Jackson v. Osborn, 2 Wend. 555. (3) It was error to permit the witness, Dyer, to testify in contradiction of the evidence of Engelke, as to the whiskey indictments. The court should not have permitted Engelke to be contradicted on a collateral question asked by defendants. Muller v. St. Louis, 5 Mo.App. 402. (4) It was erroneous for the court to instruct the jury that actual ill-will, or dislike, by defendants towards plaintiff, is not malice, in its legal sense. 2 Greenl. on Evid. [10 Ed.] p. 403. (5) Instruction numbered two, for defendants, was erroneous. The finding of the indictment was wholly, or partly, the work of defendant, Chouteau, and the fact of the finding cannot be evidence in his behalf; if so, he can make evidence for himself, and by the very instrument concocted to do so much wrong and injury to plaintiff. (6) Defendants' instruction, numbered three, should not have been given. A party, having wickedly and maliciously caused and procured a person's arrest, cannot relieve himself from responsibility by subsequently withdrawing from the prosecution of the false charge he caused to be preferred, or by directing his attorney to do so. (7) It was error for the court to refuse plaintiff's instruction, numbered one. The law is settled that if an attorney, dishonestly and for some purpose of his own, with some sinister view of his own, prefers the indictment, lodges the information, or urges the prosecution, he is liable to the plaintiff, and his employment by his client, either general or special, will not shield him.

S. Hermann and G. A. Madill for respondents.

(1) When a party complains of error in the ruling of the trial court, his bill of exceptions should not only show the specific objections made, but the fact in evidence, and its connection with what precedes and follows it in the case, should be so fully and clearly brought out, and preserved in the bill, as to make it obvious, without strain or doubtful inference, that the ruling was erroneous; and, unless this is done, this court will affirm the ruling of the court below. McMillan v. State, 13 Mo. 33; Douglas v. Stevens, 18 Mo. 368; Houston v. Lane, 39 Mo. 498; Holmes v. Braidwood, 82 Mo. 613; State v. Tucker, 84 Mo. 26; State v. Brown, 75 Mo. 317. (2) In actions for malicious prosecution, for the purpose of rebutting malice and establishing the existence of probable cause, defendant may put in evidence any facts which tend to establish the guilt of plaintiff, whether he knew them of his own knowledge, or whether they were communicated to him by others, or, even, by public rumor; provided he can show that he knew, or learned, the facts before engaging in the prosecution, and that he believed them. Such testimony, in this class of actions, is original evidence, and not hearsay. Barron v. Mason, 31 Vt. 189; 2 Greenl. on Evid. [Redf. Ed.] sec. 454; Bacon v. Towne, 4 Cush. 217; Pullen v. Glidden, 68 Me. 563; Forshay v. Ferguson, 2 Denio, 617; Hitchcock v. North, 5 Rob. [La.] 328; 3 Suth. on Dam. 708; Israel v. Brooks, 23 Ill. 577; Bush v. Prosser, 11 N.Y. 348, 356, 360, 367; Bisbey v. Shaw, 12 N.Y. 70; Kennedy v. Holborn, 16 Wis. 458. (3) Malice, in actions for malicious prosecution, is defined as "the want of a sincere belief of the plaintiff's guilt of the crime for which the prosecution was instituted." Malice, in this connection, may also be defined as "a wrongful act, done intentionally, without legal justification or excuse." Barron v. Mason, supra; Sharpe v. Johnston, 59 Mo. 558. (4) In the cross-examination of a witness, he may be asked any questions which tend to test his accuracy, veracity, or credibility; or, to shake his credibility, by showing his character. He may be compelled to answer any such question, however irrelevant to the facts in issue, and however disgraceful the answer may be to himself. The exceptions to the above rule are not in point here. Stephens' Dig. Evid. 123; Muller v. St. Louis, 5 Mo.App. 401; S. C., 73 Mo. 243. (5) In order to make an attorney liable, in an action for malicious prosecution, it must not only appear that he brought an action which was, in fact, groundless; it must further appear that it was agreed, between the client and the attorney, to bring an action, known to both to be groundless, and to bring it as such. Burnap...

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