Cole v. Curtis

• Decision Date: 01 January 1871
• Parties: IRA COLE v. JOHN CURTIS and others.
• Court: Minnesota Supreme Court

Page 161

16 Minn. 161

IRA COLE

v. JOHN CURTIS and others.

Supreme Court of Minnesota.

Appeal from a judgment of the district court, Ramsey county.

Allis, Gilfillan & Williams, for appellants.

Brisbin & Palmer, for respondent.

McMILLAN, J.

This action is brought against the defendants for a malicious prosecution and arrest of the plaintiff upon the charge of larceny.

The complaint alleges the partnership of the defendants, and in due form alleges that on the twenty-third of February, 1869, the defendant John Curtis acting for the firm, and with the actual knowledge and consent of Nash, the other partner, maliciously, and without probable cause, made complaint before the city justice of the city of St. Paul, charging the plaintiff with the larceny of certain personal property of of the firm described in the complaint, of the value of $300 and caused and procured the city justice to issue, and said city justice did issue and grant, his warrant commanding the proper officer to arrest the plaintiff and bring him before said city justice to be dealt with according to law in respect to the matters set forth in said complaint; that on the twenty-fourth of February, 1869, under the authority of the warrant, the plaintiff was arrested and imprisoned, etc.; that he was afterwards examined before the justice upon said charge, and was acquitted and discharged by the justice, and that the defendants have not further prosecuted said complaint, etc.

The defendants answer jointly, and deny each and every allegation in the complaint, except as admitted or stated in the answer.

They admit the partnership as alleged in the complaint, and [aver] that on the twenty-second of February, 1869, the property mentioned in the complaint was their property and in their possession, and on or about that day, without their knowledge or consent, was taken, carried away from them, and secreted; that on the twenty-third of February, 1869 the defendant John Curtis went before the city justice, and made complaint on oath that the said property had been feloniously stolen by the plaintiff, as he believed, and was secreted in the lodging place of the said Cole, etc., and prayed that a search-warrant might be issued for the search of said premises; that a search-warrant was issued and delivered to the chief of police of St. Paul, who searched the premises and found the goods secreted therein; and that these are the affidavits, complaint, and warrant referred to in the complaint. The answer also states "that at all the times mentioned in the complaint they had probable cause to believe, and did believe, that the said Ira Cole had feloniously stolen, taken, and carried away the said goods, wares, and merchandise, and secreted the same in his lodging place in said city of St. Paul."

The plaintiff upon the trial called as a witness E. Burnand, who testified that he was at the time acting city justice of the city of St. Paul, and had the custody of the records of that office. A book marked Docket B was then shown to him, and he further testified: "I found this book at the office of the city justice of the city of St. Paul. It is one of the records of that office. Oscar Malmros was city justice before Howard. * * * I know his handwriting. The entries on page 763 of this Docket B are in his handwriting." The entries referred to constitute the record of the proceedings before the justice on the information by defendant Curtis against Cole. This record was offered in evidence by the plaintiff, in connection with the papers referred to therein, to which the defendants objected as incompetent and immaterial. The objections were overruled, and the defendants excepted.

It has heretofore been determined by this court that it is immaterial whether the statute requires a justice of the peace to keep a criminal docket in cases of this kind. If it appears that a record was made of the proceedings by the justice, the record is competent evidence, and may be identified by the justice, or any other competent proof. Chapman v. Dodd, 10 Minn. 350, (Gil. 277.) The identification of the docket in this case by the acting city justice was sufficient, and the objection was properly overruled. Sanborn v. School District, 12 Minn. 17, (Gil. 1.)

The same witness identified certain papers as belonging to the files and records of the city justice. These were the papers mentioned in the docket entries of the justice, received in evidence. The first, marked by the court Exhibit A, was a complaint by the defendant Curtis, charging Cole with the larceny of the property mentioned in the complaint in this action. The second, marked Exhibit B, was a complaint by Curtis against Cole, alleging that the property described in the former complaint, and which was stolen as stated therein, was concealed, etc. The third, marked Exhibit C, was a warrant, in the ordinary form of a search-warrant, with the return of the officer indorsed thereon that he had searched the premises, found the property, and brought it with the body of Cole into court. The fourth, marked Exhibit D, was a recognizance of Cole, with a surety, in which is the recital that Cole "was on the twenty-fourth of February, 1869, duly brought before Oscar Malmros, city justice, etc., charged, on oath of John Curtis, by complaint in writing, which was duly stated in the warrant of arrest, that on the twenty-second day of February, 1869, said Ira Cole had, in the city of St. Paul, in said Ramsey county, * * * unlawfully stolen, taken, and carried away the several articles mentioned in said complaint, the personal property of the firm of Curtis & Nash, consisting of the said complainant and Edgar Nash, said property being of the value of $300; that the examination of said Ira Cole upon said charge had been adjourned and continued, on the motion of the state, until the twenty-sixth of February, 1869, at 10 o'clock in the forenoon, and that upon the execution of the recognizance said Ira Cole is about to be released from custody until the date fixed for such examination," the condition of the recognizance being his appearance at the day named, etc., for such examination, etc.

These exhibits were severally objected to, and their reception excepted to by defendants. The only objections urged in this court, however, are to Exhibits B and C, the ground of the objections being that there is a fatal variance between the allegations of the complaint and the proof offered.

The complaint alleges a complaint for larceny, and an arrest of Cole upon a warrant issued upon such complaint, and Exhibits B and C are a complaint for a search-warrant, a search-warrant issued upon such complaint, and the return of the arrest of Cole upon the warrant.

But the docket of the justice, and Exhibits A and D, show the institution of a prosecution and complaint against Cole for the larceny, and a hearing and discharge of the defendant Cole upon that charge, and that the information for a search-warrant was made; and the search-warrant upon which the goods were taken and the arrest of Cole made, were in the same proceeding, and constitute part of the same prosecution.

The steps essential to a search for stolen property are prescribed by chapter 102 of the General Statutes. A proceeding under this chapter may perhaps in some instance be a substantive criminal proceeding, but is not necessarily so; it may be ancillary to the prosecution for larceny; the facts upon which the warrant is issued may be embraced in the original complaint, or may be made in a separate complaint, and at a subsequent stage of the proceedings.

In this case the complaint for the search-warrant, although separate from the original complaint for larceny, and made subsequently, refers to and recites the original complaint, and is evidently in aid of the prosecution for larceny, and part of the proceedings in that prosecution. So far as appears from the evidence, Cole, upon the arrest by virtue of the search-warrant, was brought before the justice, and held to answer before him upon the charge made in the original complaint.

After the arrest upon this warrant, the examination upon the charge of larceny transpired, in which both the present defendants participated. The arrest for the crime of larceny having been in fact made by virtue of the search-warrant against Cole issued in the same proceeding, under these circumstances, even if it was irregular, cannot be taken advantage of by the defendants. We think the proofs offered support the allegations in the complaint, and that there is no substantial variance between them. Riley v. Gourley, 9 Conn. 154.

When the plaintiff rested his case in chief, the defendants moved to dismiss the action, on the ground that the evidence did not make out the plaintiff's case, which was overruled by the court.

In support of the exception to this ruling the defendants urge: (1) That there was no proof whatever of the issuance of a warrant of arrest against the plaintiff, and of his arrest under such warrant, as alleged in the complaint. (2) As to defendant Nash there is no evidence whatever connecting him in any way with the making of any complaint of any nature against the plaintiff, or with the issuance or execution of the search-warrant. (3) That the evidence fails to show want of probable cause.

The first of these grounds is determined adversely to the defendants by the view we have expressed upon the admissibility of the search-warrant, and that it supports the allegations in the complaint.

As to the second and third grounds, without reviewing the testimony, we think, upon the case in chief of the plaintiff, there was sufficient evidence to submit the cause to the jury; but even if that were not so, upon an appeal to this court, in considering a question of this kind, we will not confine our attention to the testimony in chief, but will look to all the testimony in the case, and if it appears therefrom that there was sufficient...