Casey v. Dorr

• Decision Date: 11 April 1910
• Citation: 127 S.W. 708,94 Ark. 433
• Parties: CASEY v. DORR
• Court: Arkansas Supreme Court

127 S.W. 708

94 Ark. 433

CASEY v. DORR

Supreme Court of Arkansas

April 11, 1910

Appeal fro Independence Circuit Court; Charles Coffin, Judge reversed.

Reversed and remanded.

Z. M Horton, for appellant.

Indefiniteness in pleading must be reached by motion, and not by demurrer. 71 Ark. 564; 70 Ark. 161; 66 Ark. 480; 56 Ark. 629; 52 Ark 378; 49 Ark. 277; 71 Ark. 422.

Charles F. Cole and McCaleb & Reeder, for appellee.

If the complaint shows a conviction of the plaintiff, the presumption of probable cause is rebutted. 15 L.R.A. (N.S.) 1143; 46 Kan. 550; 12 B. Mon. 555; 120 U.S. 141; 99 Mo. 183; 19 R. I. 338; 33 A. 525; 14 R. I. 609. Even binding to await the action of the grand jury is prima facie evidence of probable cause. 76 Ark. 41. When a complaint contains material facts which constitute a defense, it is bad on demurrer. 13 N.E. 51; 10 N.E. 100. In an action for malicious prosecution, the petition should state facts and conclusions. 90 Mo. 377. An answer which sets up only conclusions of law is demurrable. 43 Ark. 296; 57 Ark. 284.

MCCULLOCH C. J. WOOD, J., dissents.

OPINION

MCCULLOCH, C. J.

Appellant sued appellees to recover damages for malicious prosecution, and the court sustained a demurrer to the complaint, which is as follows:

"That on the 8th day of April, 1904, the grand jury of Independence County, Arkansas, presented to and filed in the circuit court of said county an indictment against this plaintiff in words and figures as follows, viz: (Here follows copy of indictment returned against appellant for the crime of embezzlement).

"That the allegations of said indictment were and are absolutely false. That the prosecution thereon continued from time to time, from said day and date, until the October term, 1907, of the Independence Circuit Court, at which term of said court the plaintiff herein was put upon his trial on said indictment, and upon a trial by a jury in said court found 'not guilty' and completely exonerated from all charges and imputation of guilt included and contained in said charge. That at and before the finding of said indictment, and at the finding thereof, and conducive to and causing the finding thereof, the defendants, and each of them, jointly and severally conspiring together and

desiring and agreeing among themselves to wilfully, maliciously and without probable cause to inspire them thereto, did wilfully and maliciously induce said grand jury to find and present said indictment, being prompted thereto by malice towards this plaintiff and without probable cause to believe this plaintiff guilty of the charges contained in said indictment. That the said defendants wilfully, maliciously and without probable cause to believe the plaintiff guilty, caused said indictment to be found and presented by said grand jury and instigated, aided, abetted, advised and encouraged, and procured the institution, continuance and prosecution of said indictment, and the charges therein contained against this plaintiff from time to time until the October term of said court, 1907, at which term of said court said cause was tried at the instigation of said defendants, resulting in an acquittal of this plaintiff as aforesaid. That by the instigation of said prosecution, the finding of said indictment, the continuing of said cause from time to time upon the docket of the Independence Circuit Court, * * * he has been damaged in the sum of one hundred thousand dollars. That the instigation, backing up, prolonging said prosecution and keeping said case in court, was done by the defendants wilfully, maliciously and for the purpose of extorting money from this plaintiff, and without probable cause on the part of the defendants to believe this plaintiff was guilty of the charges contained in said indictment."

It is contended by appellees, in support of the court's ruling, that, as the complaint alleges the finding of an indictment by the grand jury, there must be an additional averment, in order to show affirmatively the absence of probable cause, to the effect that the indictment was procured by fraud, perjury or other unfair conduct on the part of the defendants.

The rule seems to be established by the weight of authority that a judgment of conviction by a court of competent jurisdiction is conclusive evidence of the existence of probable cause, even though the judgment be subsequently reversed and set aside, unless it be shown that the judgment was procured by fraud or undue means. Carpenter v. Sibley, 153 Cal. 215, 94 P. 879, 15 L.R.A. (N.S.) 1143 and note; Crescent City Live Stock Co. v. Butchers' Union, 120 U.S. 141, 30 L.Ed. 614, 7 S.Ct. 472.

In Wells v. Parker, 76 Ark. 41, 88 S.W. 602 it was urged upon this court that the binding over by a committing magistrate to await the action of the grand jury was conclusive evidence of the existence of probable cause, but we declined to so hold, and decided that such was only prima facie evidence of probable cause. We find no authorities which go to the extent of holding that the mere finding of an indictment, which is only an accusation and not an adjudication of guilt, is anything more than prima facie evidence of the existence of probable cause for the prosecution. The Kentucky Court of Appeals, in a recent case, stated the following rule on the subject, which we conceive to be sound: "The finding of an indictment by the grand jury is prima facie evidence of probable cause, and the acquittal of the person indicted is evidence of his innocence; but the acquittal does not of itself show evidence of malice or the want of probable cause, and therefore the plaintiff in an action for malicious prosecution must prove some other facts...