Becke v. Forsee

• Decision Date: 03 December 1917
• Docket Number: No. 12592.,12592.
• Citation: 199 S.W. 734
• Parties: BECKE v. FORSEE.
• Court: Missouri Court of Appeals

199 S.W. 734

BECKE v. FORSEE.

No. 12592.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

Rehearing Denied December 31, 1917.

Appeal from Circuit Court, Clay County; Frank P. Divelbiss, Judge.

"Not to be officially published."

Action by Ludwig Becke against Samuel P. Forsee. Judgment for plaintiff, and defendant appeals. Affirmed.

L. C. Boyle, of Kansas City, and Martin E. Lawson, of Liberty, for appellant. E. A. Scholer, of Kansas City, and Ralph Hughes, of Liberty, for respondent.

BLAND, J.

This is an action for malicious prosecution. The material parts of the petition are as follows:

"Plaintiff further alleges that defendant did, on or about July 22, 1914, in the county of Platte, state of Missouri, falsely, maliciously, without reasonable or probable cause, procure or cause to be made an affidavit charging this plaintiff with the crime of felonious assault or assault with intent to kill, alleged in said affidavit to have been made by this plaintiff upon the person of the said Forsee, in Platte county, Mo., on or about July 21, 1914. Defendant on or about the same day filed or caused to be filed said affidavit before W. C. Shannon, a justice of the peace in and for Pettis township, Platte county, Mo., and by reason of said affidavit said justice of the peace issued a state warrant charging this plaintiff with the crime of felonious assault or assault with intent to kill, and plaintiff was arrested by reason of said charge in Kansas City, and imprisoned in the police station in said city, and held there for over a day until he was taken by Platte county officers to Platte county and permitted to give bond for his appearance at a preliminary hearing before said justice of the peace on or about July 29, 1914. Thereafter, on July 29, 1914, plaintiff appeared in court according to the terms of said bond, and the hearing was by the defendant continued until August 10, 1914, for the purpose of harassing plaintiff, and plaintiff was thereby compelled to continue under said bond for appearance until said date, and thereafter on the 10th day of August, 1914, in accordance with the conditions of his bond, plaintiff again appeared in said court to answer to said charge; and on said day, and before the hearing began, defendant caused to be filed an amended affidavit before said justice, falsely, maliciously, and without probable cause reiterating and adding to all the charges heretofore made in the former affidavit and setting out in detail that plaintiff had assaulted the defendant with a deadly weapon with intent to kill or do great bodily harm. Thereafter both parties to the prosecution announced ready, and a full and complete hearing was had, and the testimony of the state's witnesses and of the defendant's witnesses and of the defendant himself was heard by the court, and upon all the evidence being in the prosecuting attorney of Platte county asked the court to dismiss said cause and discharge the defendant, and the court accordingly dismissed and discharged the defendant of said charge, and the prosecution of plaintiff was then and there at an end and terminated in plaintiff's favor.

"Plaintiff alleges that defendant instigated, maintained, and actively participated in said prosecution without reasonable or probable cause, and with malice and in a spirit of hatred, revenge, and oppression against the plaintiff and for the purpose of punishing and making an example of him."

By the briefs we learn that the plaintiff and defendant had a difficulty over the removal by a tenant of defendant of a pair of mules from the farm. The defendant herein claimed that he had been assaulted by this plaintiff at the time of the removal of the mules, and, defendant being confined to his bed, his son made a sworn complaint against plaintiff here before a justice in Platte county, Mo. The bill of exceptions shows that upon the complaint so filed the justice issued a warrant for the arrest of plaintiff, and thereafter the latter was arrested by the constable and brought before the justice and gave bond, but before the trial of the case defendant herein filed an amended complaint against the plaintiff upon which the case went to trial. Said complaint was as follows:

"S. P. Forsee, of lawful age, being duly sworn, upon his oath says that on or about the 21st day of July, 1914, in the county of Platte and state of Missouri aforesaid, one Ludwig Becker did then and there unlawfully, willfully, and feloniously assault the said S. P. Forsee, by then and there striking, beating, and wounding him, the said S. P. Forsee, upon the head, body, and legs, and by then and there feloniously setting a large and ferocious dog upon and inciting said dog to assault, bite, and lacerate him, the said S. P. Forsee, with the intent then and there to do him, the said S. P. Forsee, some great bodily harm, and endanger his life. S. P. Forsee."

There was a trial upon the amended complaint, and what happened is best described in the words of the justice:

"I started and got through, and the prosecuting attorney dismissed it."

Plaintiff recovered a judgment in the sum of $200, and defendant has appealed.

Defendant's first point is that the petition does not state a cause of action, in that in many of its averments conclusions are stated, and not facts. There was no attack of any kind made upon the petition in the lower court, but defendant filed an answer and went to trial. Under these conditions, if the petition states a cause of action, even though it be defectively stated, it is good after verdict.

Defendant urges that the petition does not state sufficient facts to show whether or not the complaint upon which plaintiff was tried charged an offense against him. Without passing upon the question as to whether it was necessary to so...