Sparling v. Conway

• Decision Date: 30 April 1882
• Parties: SPARLING, Appellant, v. CONWAY.
• Court: Missouri Supreme Court

75 Mo. 510

SPARLING, Appellant,

v.CONWAY.

Supreme Court of Missouri.

April Term, 1882.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Plaintiff's evidence tended to prove that on the 9th day of October, 1876, defendant swore out an information against him in the court of criminal correction in St. Louis county, charging him with grand larceny in stealing certain paints; that he was thereon arrested and committed to the jail of that county; that on the 19th day of October he was tried upon said charge and was acquitted; that defendant had agreed with plaintiff to paint for him the house of one Harney, but being sick could not do so; that the paints were in Harney's house, and Harney would not wait until defendant's recovery, but wanted one Clawson to do the painting; that plaintiff told Clawson defendant's paints were in Harney's house, and to see defendant's wife and obtain her consent to use them, and to pay her the money if defendant died, or replace the paints if defendant lived; that he had employed and paid counsel to defend him against said charge of grand larceny. Defendant's evidence tended to prove that he had not consented to the use of the paints by Clawson or by plaintiff; that he had consulted an attorney, to whom he had communicated all the circumstances of the case, and was advised by him that it was a plain case of grand larceny; and that he had acted in good faith upon such advice, believing defendant guilty.

Marshall & Barclay for appellant.

Seneca N. Taylor for respondent.

HOUGH, J.

This was an action for malicious prosecution. The answer was a general denial, and the defense relied upon at the trial was, that the defendant acted in good faith upon the advice of competent counsel. There was a verdict and judgment for the defendant, which was affirmed by the court of appeals.

1. MALICIOUS PROSECUTION: pleading--general denial.

The plaintiff contends that the defense stated should have been pleaded in order to be made available by the defendant. We are of a different opinion. The testimony offered and received on this subject, was admissible to disprove the allegation of malice, contained in the petition and sought to be established by the plaintiff, and if the defendant had set it forth in his answer, he would only have pleaded his evidence.

2. ______: evidence

The defendant, who was a witness, was asked by his counsel, whether, from what he knew of the case, and upon the advice of his counsel, he really believed the plaintiff was guilty of grand larceny; and he answered, that he did. This testimony was objected to on the ground that it was wholly immaterial whether the defendant believed the plaintiff to be guilty of the charge preferred against him or not. We think the evidence was competent. It has recently been decided by this court, in the case of Van Sickle v. Brown, 68 Mo. 627, overruling the case of Hickman v. Griffin, 6 Mo. 37, that the reasonable and probable cause which will relieve a prosecutor from liability is a belief by him in the guilt of the accused, based upon circumstances sufficiently strong to induce such belief in the mind of a reasonable and cautious man.

3. ______: malice: probable cause.

The following instruction, given at the instance of the defendant, was objected to by plaintiff: “If the jury believe from the evidence that Conway, before he began the criminal prosecution against Sparling, consulted in good faith an attorney at law, and communicated to such attorney, in good faith, all the facts within his knowledge, or which he might have learned by reasonable diligence, bearing upon the guilt or innocence of Sparling of the crime charged; that said...