Brewer v. Fischer
| Decision Date | 05 May 1944 |
| Docket Number | 31772. |
| Citation | 14 N.W.2d 315,144 Neb. 712 |
| Parties | BREWER v. FISCHER. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. As a general rule, the test as to whether probable cause for instituting a criminal prosecution exists does not depend upon mere belief, however, sincerely entertained. The law has imposed an additional ground, viz., such knowledge of facts as would induce a reasonable man to believe the accused was guilty.
2. Generally, questions of fact are for the jury, under proper instructions, and not for the trial court, no matter how disproportionate the evidence may be. This rule is based upon the maxim that it is the office of the judge to instruct the jury in points of law and of the jury to decide on matters of fact.
Hubka & Hubka, of Beatrice, for appellant.
Jack & Vette, of Beatrice, for appellee.
Heard before SIMMONS. C. J., and PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is an action to recover damages for malicious prosecution. At the close of all the evidence, the court sustained the motion of the defendant, discharged the jury, and dismissed the petition, from which plaintiff appeals.
The petition alleged that on August 10, 1942, the defendant falsely and maliciously, and without reasonable and probable cause, made complaint against plaintiff to the county attorney, and signed a formal and written complaint before a justice of the peace, who thereupon issued a warrant for the arrest of the plaintiff.
The complaint charged that the plaintiff had issued a check for the payment of money upon the Wymore National Bank in the sum of $10.50 knowing that he had not sufficient funds in, or credit with the bank for the payment of the check, and with the intent of unlawfully defrauding Paul W. Fischer by obtaining merchandise of the value of $10.50, contrary to the form of the statutes in such case made and provided.
Upon said complaint a warrant was duly issued, and he was placed under arrest by the deputy sheriff of Gage County on August 11 1942, all against the will of the plaintiff, who claims that the same caused him much embarrassment and mental suffering, that he has been greatly injured in his credit and reputation and brought into public scandal, infamy and disgrace, and has suffered anxiety and pain of body and mind, and has been forced to expend the sum of $100 in procuring his discharge from imprisonment and defending himself therefrom, and has lost several days of working time.
To this petition the defendant filed an amended answer, alleging that a man, who said his name was Leonard Brewer, gave him said check in payment for merchandise; that the check was returned to him by the bank, marked "No account with us;" that he recited all the facts to Dean Sackett, acting county attorney, and pursuant to his direction he caused the check to be protested, and later signed a complaint prepared by the acting county attorney, who was in charge of all prosecutions in criminal matters in Gage county, and that all of his acts were done because this defendant believed there was probable cause that an offense had been committed against the laws of Nebraska by Leonard Brewer, and that defendant acted in good faith and under the advice and direction of the acting county attorney; that defendant has now been informed and believes that the plaintiff who was arrested is not the person who executed the worthless check, and that defendant in no way pointed out plaintiff to the sheriff as the one who made the check, and denies all other allegations of the petition. The reply was a general denial.
Upon the case going to trial before a jury, the evidence disclosed that the defendant signed the complaint as charged, that on the same day a state warrant was issued, that the plaintiff was arrested the next day at Wymore and brought to Beatrice and placed in the county jail, and that this complaint was not dismissed until November 18, 1942, by the state; that the same afternoon of his arrest the plaintiff was released to his attorney upon his personal guaranty to produce him when wanted.
The evidence further shows that the plaintiff had nothing whatever to do with the check, but that a man named Chester Hoefling was finally arrested and pleaded guilty to forging the name of Leonard Brewer, plaintiff, to the check in question.
The defendant testified that he had been in the harness business in Beatrice for some years, that he has no helper in the store; that a man came into his place of business, picked out a horse collar, and give him this check for it; that the purchaser asked for a check on the Wymore National Bank, but as defendant had none he changed a Beatrice National Bank check, and wrote out the check; that the buyer was a stranger to the defendant. Defendant testified that he believed the man was Leonard Brewer, for that was the name signed to the check; that in a few days the check was returned, marked "No account with us," whereupon he inquired of several people where Leonard Brewer lived, and the W.P.A. informed him that he had been working for the W.P.A., but was not at that time. The witness testified that he then went to see the county attorney, who told him he could do nothing until he protested the check, and he had that done, and upon returning to the county attorney's office later a complaint was drawn up and signed by the defendant; that as soon as the plaintiff was arrested he employed Frank E. Crawford, an attorney, who came to the harness shop of the defendant and asked him to come to the courthouse. The defendant admits that he refused to go, because he had more work than he could get out that day. After a while, defendant testified, the deputy sheriff came and asked him to go to the county attorney's office, where he met the plaintiff and his wife and his attorney, whereupon Mr. Crawford and Mrs. Brewer were asked to leave the room, and then the county attorny asked the defendant whether that was Mr. Brewer, and the defendant says he told the county attorney, "I think he is a little shorter and maybe a little older than the man that gave me the check."
On cross-examination the defendant testified that he now knows that it was the man Hoefling who came to his place of business and signed the check, and it was not Leonard Brewer who had the transaction in his place on July 30, 1942. He also testifies that Hoefling had been there several weeks before and bought some snaps.
The man who gave him the check told defendant he lived two miles north of Blue Springs. Defendant admits that he never went down to see if Leonard Brewer did live two miles north of Blue Springs, that he did not write any letter to Leonard Brewer, and made no effort to find him, except to make inquiry of several people, and sign the complaint before the county attorney.
Frank E Crawford testified that he is an attorney, living at Wymore, Nebraska; that the plaintiff called him by telephone at night, and was greatly agitated and excited about a probable arrest; that the next morning between 9 and 9:30 he saw the plaintiff in the custody of the deputy sheriff, who brought him...
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