Delgado v. Rivera.

• Decision Date: 30 March 1936
• Docket Number: No. 4157.,4157.
• Citation: 40 N.M. 217,57 P.2d 1141
• Parties: DELGADOv.RIVERA.
• Court: New Mexico Supreme Court

40 N.M. 217

57 P.2d 1141

DELGADO

v.RIVERA.

No. 4157.

Supreme Court of New Mexico.

March 30, 1936.Rehearing Denied May 29, 1936.

Appeal from District Court, San Miguel County; Taylor, Judge.

Suit by Francisco P. Delgado against Luis Rivera. From a judgment for the defendant, the plaintiff appeals.

Reversed and remanded.

Refusal to permit sheriff who has been acquitted of defendant's charge that sheriff stole defendant's firearm, to introduce testimony in malicious prosecution action that defendant did not have probable cause for making charge, held error, notwithstanding that such testimony concerned facts giving rise to criminal prosecution.

H. E. Blattman and M. E. Noble, both of Las Vegas, for appellant.

George E. Remley, of Santa Fé, for appellee.

BICKLEY, Justice.

This is an appeal from a judgment dismissing plaintiff's cause of action for malicious prosecution.

Defendant, Luis Rivera, executed and filed a criminal complaint with a magistrate in San Miguel county charging plaintiff, Francisco P. Delgado, then sheriff of said county, together with others, with having feloniously stolen a Colt's revolver, a Colt's automatic pistol and one 25-35 Winchester rifle of the property of defendant. The plaintiff was arrested, given a preliminary hearing resulting in his being held to answer in the district court. The district attorney presented an information against plaintiff charging the crime aforesaid, and plaintiff was tried in the district court of San Miguel county and acquitted.

Thereafter, plaintiff commenced this suit against defendant seeking damages for malicious prosecution. The case was tried to a jury before the Honorable Livingston N. Taylor, judge of the Eighth judicial district sitting for the Honorable Luis E. Armijo, who had been disqualified by statutory affidavit. Defendant moved for a directed verdict, finding the issues in favor of defendant, which motion was sustained.

The plaintiff as sheriff of San Miguel county, clothed with a search warrant, went together with several of his deputies, to the residence of Luis Rivera, at Tererro, in the nighttime to search the residence of the said Luis Rivera. A search was made to see if any one was near the house. No one was found. Plaintiff then knocked on the front door, but received no response. Plaintiff then left some of his deputies stationed around the house, while he, together with one or two of his deputies, went to the village of Tererro to look for Rivera, and, failing to find him, returned to the Rivera residence and proceeded to search the same. Plaintiff did not find what he was looking for, and together with the deputies aiding in the search, went out of the house, called in his guards, and drove away.

The theory of plaintiff's case is that defendant filed the criminal complaint heretofore mentioned maliciously, without probable cause, and knowing that the allegations thereof were untrue and that he procured the arrest of plaintiff and caused him to be tried as aforesaid upon false testimony. One of the points relied upon for reversal is that the trial court erred in refusing to permit plaintiff to introduce the testimony of himself and his deputies who went to the Rivera residence to search said residence for gambling paraphernalia. It is claimed that such evidence would have shown that neither plaintiff nor any one that went to the house with him took the property described in the criminal complaint which plaintiff was accused of stealing on said occasion.

As this is the principal point in the case, the nature of the testimony sought to be introduced by plaintiff, and his reasons for presenting the same, and the objections thereto, and the rulings of the court, will be referred to more in detail. Plaintiff sought to prove and offered to prove that on the night in question, he stationed guards around the house of defendant Rivera in such a manner that the headlights thereof illuminated the sides and front of the house, searched the premises around the house to see if any one was there; that no one was there; that two or three of his deputies went to the house with him, that he searched the house for gambling paraphernalia, and, not finding any, left the house together with his deputies, and that neither plaintiff nor any one of his deputies or persons with him took the rifle and two pistols, and, furthermore, that the defendant Luis Rivera and Erasmo Carrillo, and Jose Flores, were not hiding behind two barrels close to the house, as the prosecution claimed in the testimony in the criminal case, and that the said Jose Flores and Erasmo Carrillo, who had apparently testified in previous proceedings against the plaintiff, could not have seen through the window from the place where they claimed they were hiding behind the two barrels, the plaintiff take the rifle, and that no one approached the window of the house on either side where the guards had been stationed by plaintiff. The court refused to admit such testimony tendered on behalf of the plaintiff.

Upon the direct examination of Miguel S. Sena, a witness offered by plaintiff, it appeared that said witness was a deputy sheriff and had gone with plaintiff and other deputies to the residence of the defendant, Luis Rivera. The examination of the witness had not proceeded far when the following colloquy occurred:

“Mr. Crist: This line of examination would indicate that this case is to try the case over again that was once tried. I submit the incompetence-

“The Court: We are not going to try that case over again, I don't know what the purpose of it is. I'll state Mr. Blattman that we are not going to try this other case, we are not here for that purpose.

“Mr. Blattman: I do not know just what the Court has in mind. We didn't propose to try the other case, we propose to prove the allegations of our complaint that this charge was false. This complaint that is in evidence, was false.”

“Q. At what time of the day did you arrive at his house? A. It was probably some time after twelve o'clock at night.

“Q. And what, if anything, did you do when you arrived at the house of Luis Rivera?

“Mr. Crist: Objected to, if the Court please, it is opening up the entire proceedings upon which this case was formerly based, it means the trial of the case over again. The objection is, the Verdict of the Jury already introduced in evidence establishes that case so far as it goes. We are not going to try that case over again. As I understand, there was a complaint before the Justice of the Peace, and on that complaint, the Justice of the Peace issued a warrant, and on that warrant the defendants were arrested, brought before the Justice of the Peace, and bound over to the District Court, and then the District Attorney filed an information and he was tried on that Information here and acquitted.

“Mr. Noble: But, if the Court please, we still have to show that the charge on which this was based was false. We have to show sufficient of those facts to show that this defendant in this case knew they were false at the time he filed this information. We can't do that without showing what happened down there to show why he knew it was false.

“The Court: All right, proceed. Overruled.

“Mr. Crist: Note an exception.

“Mr. Noble: The falsity of the charge depends on certain facts and on certain things that took place down there.”

The court permitted the witness to answer a number of questions over the objection of defendant's counsel, and then the following occurred:

“Q. While you were there in the house of Luis Rivera, what did you do, and Francisco P. Delgado and Espiridion Arrelanes do, if anything? A. We just-

“Mr. Crist: Question objected to for the reasons already stated.

“The Court: Sustained.

“Mr. Blattman: To which ruling of the Court, the plaintiff excepts for the reason that under the allegations of the complaint, it is alleged that the defendant knew that this charge which he filed, this criminal complaint which he filed, was not true, and plaintiff takes the position that he is entitled to prove in this case, not only that he filed it knowing that it was not true, but that anything that he did in connection with it was malicious.

“The Court: What difference does it make what this man did when he was there, if the defendant was not present?

“Mr. Blattman: This is not a criminal case, in which any statements made by anyone there in the presence of the defendant would not be admissible, if that happens to be the case in which an admission might be tried to prove it might be correct.

“The Court: I can't see the materiality of what this man did in the defendant's home, or at the defendant's home when he didn't see him there that night.

“Mr. Blattman: That was perhaps just preliminary.

“The Court: Sustained.

“Mr. Blattman: Exception, for the reason that it is alleged in the complaint that the defendant did file before the Justice of the Peace, Precinct No. 61, San Miguel County, a criminal complaint, that he knew at the time he filed it that this plaintiff had not stolen anything from his house, and we now make tender to prove by this witness that this witness was there present all of the time and he, together with Espiridion Arrelanes and the plaintiff, Francisco P. Delgado, went into the house of Luis Rivera, searched his house, and did not steal the property described in the criminal complaint filed in the Justice of the Peace Court of Precinct 61 of San Miguel County.

“The Court: Sustained.

“Mr. Blattman: And that Luis Rivera was not in the house and was not in and about the premises.

“The Court: Sustained.

“Mr. Blattman: Note an exception.

“Q. When you arrived at the house of Luis Rivera, what did you do about parking the cars in which you were traveling?

“Mr. Crist: We have been through the facts of this case twice already, I know just what he is leading to, and I object to it on several grounds: First, It is to try the case all over again and open up a new issue; Second: The...