Barrett v. Chouteau

• Citation: 94 Mo. 13,6 S.W. 215
• Parties: BARRETT v. CHOUTEAU.
• Decision Date: 19 December 1887
• Court: United States State Supreme Court of Missouri

6 S.W. 215

94 Mo. 13

BARRETT v. CHOUTEAU.

Supreme Court of Missouri.

December 19, 1887.

MALICIOUS PROSECUTION — EVIDENCE — SUFFICIENCY.

In an action for malicious prosecution, the only evidence to show a prosecution was that the defendant was on the grand jury which indicted the plaintiff and P.; that the defendant employed counsel to prosecute P., and that such employment was with reference to P. alone. Held, that the court erred in overruling the defendant's demurrer to the evidence.

Appeal from circuit court, St. Charles county; W. W. EDWARDS, Judge. Transferred from St. Louis court of appeals.

S. Hermann and G. A. Madill, for appellant. Frank G. Bowman, for respondent.

HORTON, C. J.

This is a suit for malicious prosecution. The petition contains two counts, in the first of which defendant is charged with the malicious prosecution of an indictment found by the grand jury within and for the city of St. Louis charging plaintiff, Charles H. Peck, and Bernard H. Engelke with a fraudulent conspiracy to defraud Alice Livingston and others interested in a certain corporation known as the "Windsor Hotel Company." The second count charges defendant with malicious prosecution in procuring the arrest of plaintiff on a false affidavit and complaint, prepared at the instance of defendant, and sworn to by Joseph H. Livingston, charging plaintiff with a fraudulent conspiracy to defraud one Alice Livingston and others interested in the Windsor Hotel Company. On the trial, plaintiff had judgment for $3,000 on the first count, and $5,000 on the second count. Defendant filed his motion for new trial, which being sustained as to the first count, plaintiff dismissed as to that count, and, the motion being overruled as to the judgment on the second count, defendant appealed to this court. At the close of plaintiff's evidence, as well as at the close of that offered by defendant, the defendant asked instructions in the nature of a demurrer to the evidence, which the court refused to give, and this action of the court is assigned as the chief ground of error.

The dismissal of the suit as to the first count withdraws from our consideration the question as to whether there was evidence showing that defendant maliciously prosecuted plaintiff on the indictment, inasmuch as said count was based on that charge. That count being eliminated, we are confined, in our consideration of the objection made to the action of the court in refusing to sustain the demurrer to the evidence, to the question as to whether there is any evidence tending to show that defendant inaugurated or prosecuted with malice, and without probable cause, the complaint or information based on the affidavit of J. H. Livingston, and instituted the same day that proceedings on the indictment terminated. To give plaintiff any standing in court, it was essential for him to offer evidence tending to show the fact that defendant set on foot and conducted the proceedings had on the information, after a nolle prosequi had been entered on the indictment, and the prosecution thereunder ended. It is contended by defendant that there is no evidence tending to establish that fact, but that, on the contrary, it is disproved, both by the evidence introduced by plaintiff, as well as that offered by defendant.

The only witness introduced by plaintiff to establish this essential fact was the defendant. It appears that his deposition had been taken on behalf of plaintiff, and was read by him on the trial of the case as containing admissions of defendant. Thereafter plaintiff put defendant on the stand as a witness, who stated, among other things, that he was a member of the grand jury that found and returned the indictment charging that Peck, Engelke, and Barrett, the plaintiff, had entered into a fraudulent conspiracy to defraud Alice Livingston and others interested in the Windsor Hotel Company; that, after the indictment was returned, Peck charged that defendant was at the bottom of it, and threatened that he would make him smart for it; that he was advised by his attorney, Judge Madill, to engage some attorney to see that the indictment against Peck was fairly presented; that he saw Mr. Glover, an attorney, and requested him to examine as to whether the indictment was properly drawn, and properly put before the court; that Glover said he would examine it, and report; that thereafter he reported that he had examined the record, and that the indictment would hold, and asked defendant if he wished him to look to it, to which defendant replied "Yes," and that was all that occurred at that time; that a short time after this he paid Glover $500 for his fee. In the deposition which was read, the defendant was asked: "Did you employ Mr. John M. Glover as attorney to prosecute the indictment against Peck, Engelke, and Barrett that was returned?" to which he answered: "I did not." In his examination as a witness before the court, he was asked why he answered the above question in that way before he knew Glover admitted his employment. His answer...