Anderson v. Friend

• Decision Date: 31 January 1874
• Citation: 71 Ill. 475,1874 WL 8701
• Parties: LEMUEL I. ANDERSONv.ELIZA FRIEND.
• Court: Illinois Supreme Court

71 Ill. 475

1874 WL 8701 (Ill.)

LEMUEL I. ANDERSON

v.ELIZA FRIEND.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Logan county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Mr. S. A. FOLEY, for the appellant.

Mr. I. T. HOBLIT, and Messrs. BEASON & BLINN, for the appellee. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This is an action on the case for malicious prosecution, by appellee against appellant. The charge made by the declaration is, that appellant maliciously and without probable cause procured appellee to be arrested and prosecuted before a justice of the peace for larceny, in stealing, in conjunction with two other persons, a hog, the property of appellant.

Appellee is a married woman, and, during the progress of the trial, she introduced, as a witness on her behalf, her husband, who was permitted to give evidence, against appellant's objection, and this is one of the errors assigned and argued.

It is provided by section 5 of the act relating to the competency of witnesses in civil cases, in force February 14, 1867, “that no husband or wife shall, by virtue of section 1 of this act, be rendered competent to testify for or against each other as to any transaction or conversation occurring during the marriage, whether called as a witness during the existence of the marriage or after its dissolution, except in cases where the wife would, if unmarried, be plaintiff or defendant, * * * and except, also, in cases where the litigation shall be concerning the separate property of the wife; in all which cases the husband and wife may testify for or against each other in the same manner as other parties may under the provisions of this act.”

The plaintiff here is authorized to bring suit in her own name, just as if she were sole and unmarried, because, under the law as it now stands, she is entitled to the proceeds of whatever judgment she may recover, as her separate property, free from the control or interference of her husband.

It is plain, therefore, that her husband was properly admitted to testify as a witness in her behalf, under the language of the section quoted.

The State's Attorney for Logan county, Mr. Hudson, conducted the prosecution against appellee, in his official capacity, and he dismissed the prosecution without going through the form of a trial before the justice of the peace. He was sworn as a witness on the trial in the court below, and gave evidence on behalf of appellant. Among other questions propounded to him by appellant, was the following: “Please state to the jury why you dismissed the case before the justice?” To this, appellee, by her counsel, objected, and the court sustained the objection, and refused to allow the question to be answered. Appellant excepted, and insists the court erred in this ruling.

We think the question should have been answered. As was said in Collins et al. v. Fisher, 50 Ill. 361, “Such reasons for dismissing the suit might have been given as would have in a manner disrobed the case of all pretense of malice, whereas, by its rejection, the jury were left to infer it was dismissed for the reason that it had been unjustly brought, or to any other influence the fertile minds of the jury might suggest, prejudicial to the defendants.” The fact that the State's Attorney was not acting under the direction or control of appellant, but in the discharge of an official duty, instead of being an argument against the admission of the evidence, is directly the reverse. The inference which the jury would likely draw from the fact of its dismissal by him would be quite as prejudicial to appellant as if the dismissal had been by himself, and there is, therefore, the same necessity for allowing the cause which induced the dismissal to be given in evidence in the one case as in the other.

Appellant offered to prove, by his own evidence, that, in commencing the prosecution, he acted under the advice of the State's Attorney; that he acted in good faith, and verily believed that appellee was guilty of larceny, and also proposed to give in evidence what had been communicated to him by Robert Weaver and William Sapp, relative to appellee's conduct in connection with the larceny charged, upon which, in part, he acted in instituting the prosecution. This was all...