Stubbs v. Mulholland

• Decision Date: 28 March 1902
• Citation: 168 Mo. 47,67 S.W. 650
• Parties: STUBBS v. MULHOLLAND et al.
• Court: Missouri Supreme Court

67 S.W. 650

168 Mo. 47

STUBBS v. MULHOLLAND et al.

Supreme Court of Missouri. Division No. 2.

March 28, 1902.

MALICIOUS PROSECUTION — PROBABLE CAUSE — MALICE — CHARACTER OF ACCUSED — NEGLIGENCE OF PROSECUTOR — ADVICE OF ATTORNEY — FAILURE TO INVESTIGATE — EVIDENCE — ADMISSIBILITY — INVALID WARRANT — MALICE.

1. Rev. St. 1889, § 4036, provides that a prisoner shall be discharged if no offense has been committed, or there is no reasonable cause for charging the prisoner therewith. Section 4403 provides that costs in a prosecution in which the prisoner is discharged by the magistrate shall be taxed to the prosecutor unless the magistrate certifies that there was probable cause for the prosecution. Held, that the discharge of a person charged with a penitentiary offense was prima facie evidence of a want of probable cause, though the magistrate certified that there was probable cause for the prosecution.

2. Malice on the part of the prosecutor, and want of probable cause for the prosecution, must concur, in order to constitute malicious prosecution.

3. Where there is evidence of want of probable cause, the burden is on the defendant to rebut any inference of malice arising therefrom.

4. The defendant in an action for malicious prosecution is chargeable with having all the knowledge of the facts before the prosecution was instituted which he could have learned by due diligence.

5. Where evidence showing want of probable cause is introduced, and defendant introduces no evidence, the question whether the evidence shows malice is for the jury.

6. The failure of defendant or his agent to make inquiries as to plaintiff's character before his arrest, when in a position so to do, is negligence from which malice may be inferred.

7. Where a person instituting a criminal prosecution accepts the voluntary services of another in investigating the matter, and acts on his advice in instituting the prosecution, he is estopped from denying the agency of the person making the investigation, and is bound by his failure to make proper inquiries, or to communicate material information to the principal.

8. Where a person whose name is forged to a check offers to assist the person who was swindled thereby in finding the offender, and could have informed the latter that the signature was not in the handwriting of the person arrested therefor, the failure to take advantage of such offer before the arrest was negligence sufficient to show malice.

9. Proof of the arrest of a person recklessly and unreasonably, and in gross disregard of his right, is sufficient to show malice, without evidence of ill will, malevolence, or revenge, though evidence of such feelings is admissible.

10. The mere fact that a duly licensed attorney is consulted before commencing a criminal prosecution, and advises the prosecution, is not a defense to an action for malicious prosecution, where it is not shown that the attorney was considered competent in the community to give advice in legal matters.

11. Where a person commencing a criminal prosecution is negligent in ascertaining the facts concerning the guilt of accused, and the identity of defendant is the sole question to be considered, the advice of counsel to commence the prosecution is not a defense.

12. A justice warrant issued within one county, which does not contain the certificate of the clerk of the county court where the same was issued that the officer issuing it was authorized so to do, or the signature of a magistrate authorized to issue a warrant in another county, on proof of the signature of the officer issuing the warrant, as required by Rev. St. 1899, § 2444, is a nullity outside the county in which it is issued, and does not authorize an arrest.

13. An arrest under an invalid warrant is evidence of malice in an action for malicious prosecution.

14. The negligence of an attorney advising a criminal prosecution and drawing the complaint, in permitting the arrest of accused, 300 miles outside the county, on a warrant invalid outside the county, is evidence of malice on the part of the client.

15. Procuring the issuance of a warrant for the arrest of a suspected criminal, and delivering it to an officer, with instructions that it is not to be used unless the officer is satisfied that the person named therein is the guilty party, is sufficient evidence of malice to support an action for malicious prosecution.

16. Where a suspected criminal is arrested under an invalid warrant sworn out by one having no reasonable cause to believe defendant guilty, the act of placing defendant in jail while a friend is procuring bail, and in violation of a promise not to do so, is evidence of malice.

17. The defendant in an action for malicious prosecution, who procured the arrest of plaintiff under a void warrant, will not be heard to question the jurisdiction of the court issuing the warrant and discharging the prisoner, as not showing a valid prosecution.

18. The invalidity of a warrant, or the want of jurisdiction of the court issuing it, does not constitute a defense to an action for malicious prosecution based thereon.

19. Evidence tending to show the guilt of a third person for the crime for which plaintiff was arrested is inadmissible, as plaintiff's innocence is not in issue.

20. Where there is evidence of malice or want of probable cause, such issues are for the jury.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Action by Joseph H. Stubbs against John H. Mulholland and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Botsford, Deatheridge & Young, for appellant. F. M. Black, A. L. Sherman, and Simrall & Trimble, for respondents.

SHERWOOD, P. J.

Action for malicious prosecution. The defendant banking company, of which defendant John Mulholland is president, and the other defendants were employés, is a business concern, whose chief, if not exclusive, business, consists in buying laboring men's time; that is, by discounting their pay checks, etc. The calling seems to have been remunerative, as they employed at a salary A. L. Sherman as a lawyer to attend to their legal business, and gave him desk room in their banking office. Joseph H. Stubbs, the plaintiff in this action, testifying in his own behalf, in substance stated: That he was 30 years of age. That he had never been in Kansas City until brought there on a warrant of arrest in April, 1897, from his residence in Scott county, Mo. (Blodgett). He had formerly lived in that county. Lived there somewhat over 20 years, having arrived there from Eddyville, Ky., when a boy 9 years old. On his arrival in Scott county, he worked on a farm until October, 1888, when he was employed in the store of Marshall, McMillan & Co., of Scott county, in their dry goods department. That his physician, thinking he had Bright's disease, advised his removal from Scott county to Springdale, Ark., and recommended the water for his complaint. That accordingly he removed there with his family, consisting of a wife and two children, and went into the grocery business with W. G. Thompson, A. L. Thompson, and Chas. Stubbs, his brother, and remained in Springdale, living with his family (a wife and two children), from January, 1896, to December 1st of that year. That, regaining his health, and business being very dull, and being solicited by his old employers, Marshall Bros., to return to Missouri, — they offering him an interest in their business, should he do so, — he accepted their offer, and went back with his family to Scott county, Mo. It was generally known in Springdale that plaintiff contemplated leaving there with his family to return to Scott county, Mo. That, prior to his being brought before Justice Case on a charge of forgery, he never saw the $75 check on which he was charged with forging the name of W. G. Thompson (the payee in the check) by indorsing his name thereon. That he never indorsed Thompson's name on that check. That prior to his arrest Detective Kinney never called on him for information, and no one else every made inquiry of him about the matter contained in the charge. That he was under arrest from Friday of one week to Thursday of the next. That when brought to Kansas City he was locked up in jail, being in jail about 30 minutes. That witness requested Officer Hughes, one of the defendants, to allow witness to give bail before being taken to jail. That it was understood that witness was to be permitted to give such bond, but that witness was taken to jail notwithstanding said agreement. He also testified as to expense he had incurred. The complaint, filed on April 21, 1897, by one of defendants (Thos. A. Barber), charged plaintiff with forging the name of W. G. Thompson on the following check: "Treasurer of the Atchison, Topeka & Santa Fé Ry. Co.; Pay to the order of W. G. Thompson ($75.00) seventy-five dollars in full payment of wages for May, 1896. J. Moore." Indorsed on the back as follows: "W. G. Thompson." The forging was charged to have been done in Jackson county, Mo., on the ____ day of June, 1896, in order to defraud the John Mulholland Banking Company, a corporation. The warrant issuing on the complaint was served by Patrick J. Hughes, D. C.; the special officer arresting plaintiff on April 23, 1897, at Blodgett, in Scott county. On hearing had on 28th day of April, 1897, Justice Case adjudged plaintiff not guilty, and discharged him. At the trial, Mulholland, Barber, and Hughes all testified against plaintiff.

Hughes, who made the arrest, had been in the employ of the John Mulholland Banking Company since May, 1893, and his time went on while absent, going to Scott county, making the arrest, and returning with the prisoner. That Sherman was the general attorney of the banking company, and, with his knowledge and under his directions, Hughes got himself appointed special deputy, and went and arrested plaintiff and brought him from Scott county. That Barber, defendant,...