Brown v. Willoughby

• Decision Date: 01 April 1879
• Citation: 5 Colo. 1
• Parties: BROWN v. WILLOUGHBY.
• Court: Colorado Supreme Court

5 Colo. 1

BROWN v. WILLOUGHBY.

Supreme Court of Colorado

April, 1879

Appeal from the District Court of Arapahoe County.

CASE for malicious prosecution.

In the fall of 1874, Willoughby, the appellee, was sheriff of Arapahoe county. As such officer he levied, at the suit of Brown, the appellant, a writ of attachment upon a stock of dry goods and notions of the property of the firm of Mines and Elliott. In April of the following year Brown's suit ripened into a judgment, he sued out a special execution, and at the request of Brown, Willoughby removed the goods to the auction house of Clark & Co., and advertised the sale, as required by statute. The sale continued about either days. Prior to its commencement Willoughby informed Clark, the auctioneer, that he desired to select certain articles from the stock for himself his wife, and two ladies named Jochmus and Watson, with the understanding that he was to account for the goods selected as the same rates the like articles should realize at the public sale. Being informed by Clark that he was content, Willoughby made his selections prior to and during several days of the sale. The goods so selected were divided into three parcels; one lot was delivered to Mrs Jochmus and one to Mrs. Watson, by Willoughby, and accounted for on the books of Clark and Company, and the proceeds paid to Brown. The goods selected for himself and wife, Willoughby placed in a trunk in Clark & Co.'s store. After the sale closed, Willoughby learned that Brown was dissatisfied with his conduct in the matter, and be thereupon requested Clark &amp Co. to sell the goods selected for himself and wife, at public sale, which was done, and the proceeds accounted for and paid to Brown.

In September, 1875, the grand jury of Arapahoe county returned into the District Court a bill of indictment against Willoughby for the larceny, as bailee, of the goods sold and delivered by him to Mrs. Jochmus and Mrs. Watson. The indictment contained four counts. The first laid the ownership of the property in Brown; the second in one McFarland, who had claimed the Mines and Elliot stock as their assignee; the third in Mines and Elliot, and the fourth in Brown. Willoughby appeared and gave bail, and at the following January term, 1877, was put upon his trial and acquitted, upon the people's testimony, the jury not leaving the box.

Thereupon this cause was commenced, and resulted in a verdict and judgment in favor of Willoughby, in $6,000. To reverse that judgment Brown prosecuted this appeal.

The appellant assigned twenty-six errors, but as the cause was reversed upon a supposed erroneous instruction, it is deemed unnecessary to make a further statement, except to set cut the instructions given, which were as follows:

1st. In order to warrant the jury in finding the defendant, Brown guilty in this action, the plaintiff must prove by a proponderance of testimony--

1. That the defendant, Brown, instituted and prosecuted, or caused to be instituted and prosecuted, the criminal suit against the plaintiff, Willoughby, for the crime of larceny, upon the indictment read in evidence. That said criminal suit is at an end, and that the said Willoughby was acquitted.

2. That said criminal suit was instituted and prosecuted by said Brown, against said Willoughby, maliciously and without reasonable or probable cause.

3. That said Willoughby has sustained damage by reason of the institution and prosecution of said criminal suit.

2d. There is no dispute that said Willoughby was thus indicted and acquitted of the crime of larceny, so that all you have to consider is--

1. Did said Brown institute or cause said prosecution to be instituted against said Willoughby?

2. If Brown did institute or cause said prosecution to be instituted, did he do it maliciously? 3. If Brown did institute or cause said prosecution to be instituted, did he do it without reasonable or probable cause?

3d. Unless you believe from the evidence that Brown did institute or cause to be instituted the said criminal prosecution against Willoughby, then your verdict shall be for the defendant.

4th. If you find from the evidence that Brown used threats, epithets or expressions of hatred or ill-will toward Willoughby during the two or three years prior to and up to a short time before the commencement of said criminal prosecution, these facts will be sufficient, unless explained, to support the charge of malice against the defendant, Brown; and malice may be also implied against him, if you find from the evidence that Brown instituted, or caused said prosecution to be instituted, without probable cause.

5th. The want of probable cause is a material averment and must be proved by the evidence. It is not to be inferred from the facts of the acquittal of the said Willoughby, nor is the want of probable cause to be inferred from any malice that may have been shown by the evidence to have existed on the part of Brown against Willoughby, however malicious Brown may have been toward Willoughby; still, if he had reasonable or probable cause for believing Willoughby to be guilty, he had the right to prosecute him.

Probable cause does not depend on the actual state of the cause, but upon the honest and reasonable belief of the party prosecuting.

6th. The court further instructs the jury that if you should find from the evidence that there was a feeling existing in the mind of Brown against Willoughby that amounts to malice, still from that fact, if you so find, you will not presume that the defendant, Brown, acted without probable cause that Willoughby had been guilty of larceny as charged.

7th. If you should find from the evidence that defendant did institute or advise the prosecution of the plaintiff, for the larceny of the goods described in the indictment, then to entitle the plaintiff to a verdict, you must find also that he instituted or advised the prosecution maliciously.

8th. The fact that defendant employed an attorney to assist in the prosecution of plaintiff, if you find he did so, is no evidence of malice sufficient to support this action.

9th. The court further instructs the jury that by the expression 'without reasonable or probable cause,' is meant the want of the knowledge of the existence of such facts and circumstances on the part of the defendant as would lead a prudent and careful person to honestly believe that the plaintiff was guilty of the crime imputed to him in the said indictment; and if you believe from the evidence that the said plaintiff was acquitted by the jury that tried him under the said indictment; that the plaintiff upon that trial offered no proof in his defense; that the plaintiff bore a good character prior to the making of that charge, and that his reputation in this respect was known to the defendant; that the plaintiff took the goods mentioned in the indictment, openly avowing and declaring his intention so to do; that the plaintiff told the defendant before the finding of said indictment why and under what circumstances he had taken the said goods; that the plaintiff accounted for the said goods to the said defendant; that the plaintiff took the goods while he was sheriff and holding them under a writ of execution; and that the defendant knew all these facts, if they be facts, before the finding of the indictment-then the court instructs you that there was a want of reasonable or probable cause, and your verdict must be for the plaintiff, provided you further believe from the evidence, that Brown maliciously prosecuted Willoughby, or caused him to be prosecuted upon said indictment.

10th. If you believe from the evidence, that before the commencement of the prosecution against Willoughby, he, Willoughby, held the goods mentioned in the indictment as sheriff, under legal process in favor of defendant, Brown, against Mines & Elliot, and that Brown was informed before the commencement of the prosecution against Willoughby, that Willoughby was converting said goods to his own use in a manner and under circumstances calculated to make a reasonable man believe that he, Willoughby, intended to steal the same, and that he, Brown, exercised reasonable precaution to discover the truth of such information, and that after doing so he believed such information to be true, and acted on such belief, and so prosecuted Willoughby, then Brown had probable cause to prosecute Willoughby, under the second and third counts of the indictment read in evidence, even if there was malice on the part of Brown, in such prosecution.

11th. The court further instructs the jury, that if the goods levied upon by Willoughby, as sheriff, by virtue of the execution in evidence, were the goods of Hobson and others the defendants in said execution, then in that case, Willoughby, when he made said levy and took possession of said goods, became the bailee of said Hobson et al.; and if he converted any portion of said goods to his own use with intent to steal the same, he would be guilty of larceny. And if you believe from the evidence, that Brown believed said goods to be the goods of said Hobson et al. when the levy was made, and he was credibly informed that said Willoughby did convert a portion of said goods to his own use, without accounting for the same, and without their being sold at public sale, and that said Brown was so informed, and after prudent inquiry, believed that such conversion was done in such a manner as to cause a reasonable man to believe that he, Willoughby, intended to steal the same-then such facts, if proven, will amount to a probable cause for commencing prosecution of said Willoughby for larceny, under the third count of the indictment, and to warrant you in finding the defendant not guilty, so far as the prosecution under such...