Cramer v. Harmon

• Decision Date: 24 June 1907
• Parties: JACOB CRAMER, Appellant, v. WILLIAM HARMON, Respondent
• Court: Kansas Court of Appeals

103 S.W. 1086

126 Mo.App. 54

JACOB CRAMER, Appellant, v. WILLIAM HARMON, Respondent

Court of Appeals of Missouri, Kansas City

June 24, 1907

April 1, 1907.

Appeal from Jackson Circuit Court.--Hon. Andrew F. Evans, Judge.

AFFIRMED.

Leon Block and Frank P. Sebree for appellant.

(1) The court committed error in sustaining the defendant's demurrer to the evidence under the second count of the petition. There was evidence that the plaintiff was wrongfully and without a warrant arrested by the defendant and detective Sparks. McCaskey v. Garrett, 91 Mo.App. 354; Boeger v. Langenburg, 97 Mo. 390; 1 Bouvier's Law Dictionary, 755; 12 Am. and Eng. Ency. Law (2 Ed.), pp. 721, 724, 733, 735, 738, 740, 741, 751, 757, 769 and cases cited; 2 Am. and Eng. Ency. Law, pp. 885, 886, 887; Monson v. Rouse, 86 Mo.App. 97; Ahern v Collins, 39 Mo. 145. (2) Even if the grand juror's testimony was of itself incompetent, the defendant made such testimony competent and waived objections to it by proving by defendant and Paulson what their testimony had been before the grand jury, and by cross-examining the grand juror about other matters. Phelps v. Salisbury, 161 Mo. 1; State v. Palmer, 161 Mo. 152; Johnston v Johnston, 173 Mo. 91; Carlin v. Haynes, 74 Mo.App. 34; Guntley v. Staed, 77 Mo.App. 155; McPherson v. Andes, 75 Mo.App. 204; Masonic Society v. Lackland, 97 Mo. 137; Bruce v Bombeck, 79 Mo. 231; Richardson v. Marceline, 73 Mo.App. 360; Stalzer v. Dold Packing Co., 84 Mo.App. 565; Holloway v. Kansas City, 184 Mo. 20; Webb v. Railway, 89 Mo.App. 604; Highfill v Railway, 93 Mo.App. 219; Ess v. Griffith, 139 Mo. 322. (3) The grand juror's testimony was competent. 1 R. S. 1899, secs. 2490, 2491, 2506, 2508; State v. Thomas, 99 Mo. 235; State v. Ragsdale, 59 Mo.App. 590; Insurance Co. v. Healey, 151 Mass. 537; Jones v. Turpin, 53 Tenn. 181 (Heisk.) . (4) The evidence of the grand juror had no effect on the merits or the result of the trial, and, even if incompetent, its admission ought not to disturb the verdict. Swanson v. Sedalia, 89 Mo.App. 121; Bank v. Slattery, 166 Mo. 620.

I. J. Ringolsky for respondent.

(1) The court did not err in giving a peremptory instruction to find for the defendant on the second count in plaintiff's petition, as there was no substantial evidence to sustain a recovery by the plaintiff. Charter of Kansas City, 1898, sec. 20, p. 200; Powell v. Railroad, 76 Mo. 83; Warren v. Flood, 72 Mo.App. 200. (2) The essential facts in this case are undisputed. Therefore the court should have given the peremptory instruction asked for by the defendant, directing the jury to find a verdict for him on the third count in the plaintiff's petition. Firer v. Lowery, 59 Mo.App. 97; Boogher v. Huff, 99 Mo. 183; Warren v. Flood, 72 Mo.App. 205; Powell v. Railroad, 76 Mo. 83. (3) In a suit brought to recover for a malicious prosecution the plaintiff must prove, first, that the prosecution was terminated; second, that there was no probable cause for the prosecution, and third, that the prosecution was instigated with "malice." The instructions given by the court of its own motion, as well as those given at the request of the plaintiff, do not require that the jury find that the defendant instigated or continued the prosecution brought against the plaintiff with "malice." Sharpe v. Johnston, 59 Mo. 557; Sharpe v. Johnston, 76 Mo. 660; Firer v. Lowery, 59 Mo.App. 96; Stubbs v. Mulholland, 168 Mo. 47. (4) In a malicious prosecution suit the fact that one has another arrested with hostile motives and for the purpose of forcing a payment of money is not proof that such person acted with malice. Nor is such conduct and motives equivalent to malice. But from such motives it is in the province of the jury to infer legal malice. Clark v. Thompson, 160 Mo. 467; Peck v. Chouteau, 91 Mo. 138.

OPINION

BROADDUS, P. J.

The plaintiff's petition consists of three counts, but as the first was not relied on by the plaintiff on the trial the appeal relates to only the second and third counts. The second count set forth a cause of action for the alleged wrongful act of the defendant in having the plaintiff arrested on a charge of having received stolen goods. That is to say, false arrest. The third count contains a charge that the defendant wrongfully caused plaintiff to be indicted and imprisoned for feloniously receiving stolen goods. That is to say, malicious prosecution. At the conclusion of the hearing the court sustained a demurrer at the request of defendant to plaintiff's case on the second count. The case on the third count was submitted to the jury; they returned a verdict in favor of plaintiff, which on motion for rehearing the court set aside. The plaintiff appealed from both the action of the court in sustaining a demurrer to his evidence on the second count and in sustaining the motion for a rehearing on the third count.

The defendant testified before the grand jury on the hearing of the charge on which plaintiff was indicted. On the trial he stated that while before the grand jury he was asked questions, which were taken down, and that he told everything as near as he could. Plaintiff called R. S. Adkins, the foreman of the grand jury, to contradict defendant and asked him if defendant, when he was before that body, made certain statements. To the introduction of this evidence defendant excepted on the ground that it was incompetent for a grand juror to testify to anything about what happened before that body while he was a member. The objection was overruled and the evidence was admitted. Several other questions of a similar character were asked the witness and answered over defendant's objections. It is contended by defendant that the evidence of the grand juror was incompetent.

Section 2489, Revised Statutes 1899, prescribes the following oath to be administered to the grand jury: "You do solemnly swear you will diligently inquire and true presentment make, according to your charge, of all offenses against the laws of the State, committed or triable in this county, of which you have or can obtain legal evidence; the counsel of your State, your fellows and your own, you shall truly keep secret. . . ." Section 208, idem, provides: "No grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto; . . . Any juror violating the provisions of this section shall be deemed guilty of a misdemeanor." Section 2506, idem, provides: "Members of the grand jury may be required by any court to testify whether the testimony of a witness examined before such jury is consistent with or different from the evidence given by such witness before such court; and they may also be required to disclose the testimony given before them by any person, upon a complaint against such person for perjury, or upon his trial for such offense."

The apparent object of the introduction of the evidence of the grand juror was to show that the evidence of defendant was inconsistent or different from what it was before the grand jury. The plaintiff on the hearing before the grand jury was charged with having received stolen goods from one, Lurie, defendant's business clerk. During the trial of this case, defendant was asked on cross-examination if he had settled for the loss of the stolen goods with Lurie and taken note of Lurie's brother for one thousand dollars as part compensation for such loss. He admitted having received such note, but denied that he adjusted his loss with said Lurie. The grand juror, Adkins, was asked: "Did he tell the grand jurors that he had made a settlement with relatives of the man he claimed had stolen the goods, and had obtained a note for $ 1,000, in settlement?" He answered, "No, sir, he didn't say it." Defendant also admitted having received a copyright from said Lurie's brother in the settlement. The witness stated that he had not disclosed that fact to the grand jury. These two questions and answers were strictly admissible as they went to show that defendant's statements before the grand jury were inconsistent with his testimony on the trial--that he failed to disclose to the grand jury matters, the truth of which he admitted on the trial.

The witness was further asked: "Did Barmon when he testified before the grand jury tell you that when he went down to Cramer's place with the officer, that the officer told him, Barmon, right in Cramer's place, that there was no necessity for any disturbance, that he knew Cramer and that Cramer was all right?" The answer was: "No, I don't think he told the grand jury any thing of the kind." And also the following: "Did he tell you he had nothing against Jake Lurie, but he wanted him held as a menace against Cramer to get money from Cramer--did he tell you that?" The answer was: "No, I think he tried to have both of them indicted." "Q. Did he tell the grand jury that Cramer had gone to the police station and that the matter had been investigated by Inspector Halpin and that Cramer had paid the money he paid out for the goods, did he tell you that? A. No, sir. Q. That Inspector Halpin had said these goods oughtn't to have been taken in the way they were? A. I don't think he did--not that I remember."

The first question and answer referred to an immaterial matter and could not have prejudiced defendant.

The next question was highly improper and did not refer to anything that defendant testified to in the case. Defendant admitted at no time that he had nothing against Lurie, and that he was holding him as a menace against Cramer to get money from him. The purpose of the interrogation was not to show that defendant had omitted to state a fact but to show that he had...