Charlton v. Markland

• Decision Date: 05 October 1904
• Citation: 36 Wash. 40,78 P. 132
• Parties: CHARLTON v. MARKLAND.
• Court: Washington Supreme Court

78 P. 132

36 Wash. 40

CHARLTON v. MARKLAND.

Supreme Court of Washington

October 5, 1904

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by Charles Charlton against S. S. Markland. Judgment for plaintiff, and defendant appeals. Affirmed.

John R McBride and Johnston & Giraud, for appellant.

Connor & Hand, for respondent.

MOUNT J.

This was an action to recover damages for a malicious prosecution. The complaint alleged that the defendant had sworn to a complaint before a United States court commissioner, charging the plaintiff with having unlawfully cut timber and cordwood from the public lands of the United States, for the purpose of selling said timber and cordwood; that the plaintiff was arrested, tried, and acquitted of said charge; and that the defendant made the charge and caused the arrest of the plaintiff without probable cause, maliciously, for the purpose of annoying and harassing plaintiff, and causing him expense and damage. Defendant answered, admitting the proceedings before the United States court commissioner, but denied all the other allegations of the complaint. Upon a trial before a jury a verdict was returned in favor of the plaintiff for $600. Defendant appeals.

Appellant urges that the court erred in denying a motion for a nonsuit, first, for the reason that the defendant caused the criminal prosecution upon the advice of the magistrate. In the first place, there is no evidence in the record of the plaintiff's case in chief that the United States court commissioner advised the prosecution. It is true the court commissioner, when upon the witness stand testified as follows: 'Q. You say Markland had several interviews with you? A. Yes, sir. Q. Did you attempt to advise him as his attorney in the matter? A. I never did that. I simply stated, I suppose, as I do to others, that if the facts as stated could be substantiated, that I thought he would be warranted in bringing his complaint.' This does not show that the court commissioner advised the bringing of the prosecution. Even if the evidence has a tendency to show that the prosecution was based upon advice of the commissioner, it properly belonged to the defense ( Richardson v. Spangle, 22 Wash. 14, 60 P. 64); and was a question for the jury ( Voss v. Vender, 32 Wash. 566, 73 P. 697).

Second. That the plaintiff's proof fails to show want of probable cause. There was evidence to the effect that the wood cut by respondent was cut from a mining claim in possession of a third party, and was used by respondent for domestic purposes; that a few days before the respondent was arrested he and appellant had some difficulty over another mining...