Conder v. Morrison
| Decision Date | 15 November 1938 |
| Citation | 275 Ky. 360 |
| Parties | Conder v. Morrison. |
| Court | United States State Supreme Court — District of Kentucky |
1. Malicious Prosecution. — In action for malicious prosecution, an acquittal is not evidence of want of probable cause for instituting the criminal prosecution.
2. Malicious Prosecution. — In action for malicious prosecution, plaintiff must allege and prove that criminal prosecution has terminated in his favor, either by his acquittal or in some other manner equivalent thereto.
3. Malicious Prosecution. — The termination of the criminal proceeding is a condition precedent to the maintenance of an action for malicious prosecution.
4. Malicious Prosecution. — Submission of the criminal proceedings to the jury is not such evidence of probable cause as will defeat the accused's cause of action in a suit for malicious prosecution.
5. Malicious Prosecution. — A verdict of acquittal in the criminal proceedings does not raise a presumption of malice of the prosecutor.
6. Malicious Prosecution. — In action for malicious prosecution, malice or want of probable cause will not be inferred from proof of acquittal by jury in the criminal proceedings, but plaintiff must prove other facts tending to show malice and want of probable cause to recover.
7. Malicious Prosecution. — When a grand jury, upon other testimony than that of the prosecutor alone, find an indictment to be a true bill, there is a prima facie presumption that the prosecutor had reasonable grounds for the prosecution, but such presumption is rebuttable by the accused in an action for malicious prosecution.
8. Malicious Prosecution. — An acquittal following an indictment by a grand jury will not per se prove a want of probable cause for the criminal prosecution, since the presumption of innocence will not repel the inference of probable cause arising from the indictment.
Appeal from Jefferson Circuit Court.
ROBERT E. HOGAN and LUTHER M. ROBERTS for appellant.
L.R. CURTIS and CHARLES P. SUTT for appellee.
Reversing.
Appellant, Lovell Conder, brought this action against appellee, Andrew Morrison, for alleged malicious prosecution. A general demurrer to the petition was sustained, and, the plaintiff having declined to plead further, a judgment was entered dismissing his petition. Plaintiff has appealed.
The petition alleged, in substance, that the appellee, Andrew Morrison, appeared before the grand jury of Jefferson county, and without probable cause, falsely and maliciously charged the appellant with the crime of unlawfully and feloniously burning the storehouse of appellee, and by his false statements and malicious acts procured the grand jury to return an indictment against the appellant; that he was arrested and incarcerated in the Jefferson county jail from March 5, 1936, until March 7, 1936, when he executed bond for his appearance in the Jefferson circuit court; that he was tried on April 15, 1936, in the Jefferson circuit court by a jury duly and legally impaneled, which returned a verdict of "not guilty," and thereupon he was discharged from custody.
The petition is substantially the same as the petition in Bannon v. McDonald, 270 Ky. 364, 109 S.W. (2d) 798, which we held to be sufficient. The sole difference is that in the Bannon Case the trial judge in the criminal prosecution peremptorily instructed the jury to find for the defendant while in the present case the trial judge submitted the case to the jury after instructing them as to the law of the case, and the jury returned a verdict of "not guilty." Appellee insists that this distinguishes the present case from the case of Bannon v. McDonald, and the fact that in the opinion of the presiding judge the evidence was sufficient to take the case to the jury on the question as to whether or not the defendant was guilty as charged in the indictment negatives the idea that appellee acted without probable cause. The general rule is that an acquittal is not, in an action for malicious prosecution, evidence of want of probable cause for instituting the criminal prosecution. Sills v. Paducah Box & Basket Company, 251 Ky. 783, 66 S.W. (2d) 24; Schott v. Indiana National Life Insurance Company, 160 Ky. 533, 169 S.W. 1023, Ann. Cas. 1916A, 337; Stephens v. Gravit, 136 Ky. 479, 124 S.W. 414; Jones v. Louisville & Nashville Railroad Company, 96 S.W. 793, 29 Ky. Law Rep. 945; Garrard v. Willet, 4 J.J. Marsh. 628. However, in order to maintain an action for malicious prosecution the plaintiff must allege and prove that the criminal prosecution has terminated in his favor, either by his acquittal or in some other...
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