Donnelly v. Burkett
| Decision Date | 12 October 1887 |
| Parties | DONNELLY v. BURKETT AND ANOTHER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Linn county.
Action to recover for a malicious prosecution. There was a judgment upon a verdict for defendants, rendered November 21, 1885, from which plaintiff appeals.Preston Bros., Remly & Ercanbrack, and Wolf & Landt, for appellant.
Piatt & Carr, W. G. Thompson, and M. P. Smith, for appellees.
The plaintiff, a physician, was called to treat Mrs. Alice Downing, a married daughter of the defendant first named in the title of the action. He removed from her uterus a mole, and she afterwards died from the effects of the operation. After her burial the body was disinterred, and a post mortem examination was held, and the jury returned a verdict that she “came to her death by the use of instruments in the hands of Dr. Donnelly, of Tipton.” Plaintiff was held to bail for his appearance before the grand jury, but subsequently discharged upon habeas corpus. He was afterwards indicted for causing an abortion, and upon trial was acquitted. He alleges in his petition that his arrest and prosecution were malicious, and without probable cause, and asks to recover damages therefor. He complains upon this appeal of various alleged errors. The questions thus raised we will consider in the order of their discussion in the argument of his counsel.
1. The defendant Burkett, before the trial of the indictment, made and filed an affidavit charging that the person acting as sheriff was partial to defendant, and prejudiced against the prosecution. It is such an affidavit as would support a motion for the appointment of an elisor. Upon the trial of the case, the plaintiff offered the affidavit in evidence, but it was rejected. We do not discover from the record before us that a motion was made for an elisor, based upon this affidavit. It therefore could not have been material evidence. But, even if it be assumed that an elisor was appointed upon the showing made by the affidavit, it was irrelevant. It surely did not show that the prosecution was maliciously, and without probable cause, commenced or prosecuted.
2. The plaintiff offered in evidence the original court files in the case upon the indictment, the order of discharge entered therein, the proceedings in the habeas corpus case, the warrant issued, and other proceedings under the verdict of the coroner's jury. These papers and records were correctly excluded, for the reason that the facts intended to be found thereby were admitted in defendant's answer. The time of the court should not have been consumed in hearing evidence to establish facts which were admitted in the pleadings.
3. A question was asked a witness, the short-hand reporter of the trial upon the indictment, as to a fact testified to by one of the defendants upon that trial. An objection thereto was sustained. We cannot review the court's ruling, for the reason that the record fails to show, and we cannot presume, what fact was intended to be elicited by the question. We cannot presume it would have been favorable to plaintiff, thereby presuming error.
4. One of the defendants testified that he had consulted counsel before the inquest was held. He testified to statements he made to the counsel, and was then asked if he withheld any fact in making the statement, and he answered that he did not. The evidence, we think, was competent. It is to the effect that he told the whole truth. If...
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