Bekkeland v. Lyons

• Decision Date: 19 February 1903
• Citation: 72 S.W. 56
• Parties: BEKKELAND v. LYONS.
• Court: Texas Supreme Court

72 S.W. 56

BEKKELAND v. LYONS.

Supreme Court of Texas.

February 19, 1903.

Certified questions from court of civil appeals of Second supreme judicial district.

Action by J. A. Lyons against Emil Bekkeland for malicious prosecution. Judgment for plaintiff, and defendant appeals to the court of civil appeals, which certifies a question to the supreme court.

J. A. Gillette, for appellant.

GAINES, C. J.

This case comes to us upon the following certificate:

"The above styled and numbered cause is now duly pending before us on appeal from the county court of Bosque county, upon facts and pleadings as hereinafter substantially stated, to wit: The action is for damages for an alleged malicious prosecution. Appellee, who was the plaintiff below, pleaded that appellant voluntarily appeared before a justice of the peace and instituted a criminal prosecution against him by falsely and maliciously charging him with theft, and with cutting and hauling timber from the land of another, etc. That a capias was duly issued by the said magistrate upon said charge, and the appellee arrested and placed in the county jail of Bosque county; that he had violated no law of Texas, as appellant well knew, and that appellant prosecuted him willfully, maliciously, and without probable cause; that appellee was duly tried in the county court of Bosque county upon said charge and acquitted, and he prayed judgment against appellant for his damages. Appellant in defense pleaded the general denial. Judgment for appellee. The evidence establishes the institution and result of the criminal prosecution as alleged, and there was also evidence tending to prove that appellant acted maliciously and without probable cause. The preponderance of the evidence, however, tends to show that such prosecution was neither malicious nor without probable cause. The appellant upon the trial prepared and requested the court to submit to the jury the following special charge, which the court refused, and to which ruling he has assigned as error: `You are instructed by the court, at the request of defendant, that the fact of plaintiff's acquittal upon the charge complained of cannot be considered by you for the purpose of showing malice or want of probable cause, but you can consider said fact for the purpose of showing that the prosecution in said cause had ended in plaintiff's favor.' In view of the apparent conflict among the decisions and text-writers, and of the fact that the members of this court are not wholly agreed upon the subject, we deem it advisable to certify to your honors for answer the following question, viz.: Upon the facts above stated, was the action of the court in refusing the requested instruction of appellant erroneous? Among the authorities apparently bearing upon the question we cite: Cook v. Company, 6 Tex. Civ. App. 326, 25 S. W. 1034; Jackson v. Jones (Tex. Sup.) 11 S. W. 1061; Kitchen v. State (Tex. App.) 9 S. W. 461; Estill v. State (Tex. Cr. App.) 42 S. W. 305; Griffin v. Chubb, 7 Tex. 603; Thompson v. Company (Conn.) 16 Atl. 557; Bell v. Pearcy, 33 N. C. 233; Bigelow on Torts (Ed. 1891) 63; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116; Sutor v. Wood, 76 Tex. 407, 13 S. W. 321; Heldt v. Webster, 60 Tex. 207; Raleigh v. Cook, 60 Tex. 438; Jones v. Finch (Va.) 4 S. E. 342; Womack v. Circle, 32 Grat. 347; Whitfield v. Westrock, 40 Miss. 317; Wright v. Fansler, 90 Ind. 494; Williams v. Norwood, 10 Tenn. 336; Smith v. Ege, 52 Pa. 421; 2 Greenleaf on Evidence, 455."

In Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85, the trial court instructed the jury that "a verdict of not guilty and discharge of the defendant from prosecution raises the presumption that there was no probable cause." This court held that the charge was erroneous, and in deciding the question the court say: "The defendant's acquittal did not raise the presumption of the want of probable cause." In Heldt v. Webster, 60 Tex. 207, a similar charge was held erroneous, and in course of the argument the court say: "Whether there was want of probable cause was for the jury to determine under the facts in evidence, and they might consider, in making up their verdict, the fact that the appellee had been discharged by the examining court; but the charge of the court was incorrect as matter of law, and gave to that fact a prominence to which it was not entitled." It seems to us, however, that the question whether, save for the purpose of showing that the prosecution had ended, the fact of acquittal or discharge has any probative force whatever, was not involved in that case. The same may be said as to the remarks in the course of the opinions in subsequent cases. Raleigh v. Cook, 60 Tex. 438; Sutor v. Wood, 76 Tex. 403, ...