Dorsey v. Clapp

• Decision Date: 30 November 1887
• Citation: 35 N.W. 389,22 Neb. 564
• Parties: DORSEY v. CLAPP.
• Court: Nebraska Supreme Court

22 Neb. 564

35 N.W. 389

DORSEY

v.CLAPP.

Supreme Court of Nebraska.

November 30, 1887.

Syllabus by the Court.

In an action for malicious prosecution it was claimed by the defendant, who was a constable, that he had sufficient cause for making the complaint against the plaintiff, charging him with the crime of burglary--his information being the confession of a youth whom he had previously arrested for the same crime, which confession was voluntarily given, and by which he implicated the plaintiff as being a confederate and accomplice; these facts being testified to by defendant. On his cross-examination he was asked if, prior to the confession, and while the youth was in custody, he did not, in the hearing of the party under arrest, tell another constable to take him to jail, and by the time he had laid there long enough he would confess, or language to that effect. Objection was made and the objection sustained. Held error.

The general reputation of a party to an action cannot be established by the proof of specific acts.

Error to district court, Buffalo county; MORRIS, Judge.Calkins & Pratt, for plaintiff.

E. M. Cunningham, for defendant.

REESE, J.

This action was instituted in the district court of Buffalo county. The petition contained two causes of action,--the first for false imprisonment; the second, malicious prosecution. The allegations of the second count in the petition are, in substance, that on the eighth day of October, 1884, defendant falsely and maliciously, and without reasonable or probable cause therefor, charged this plaintiff, before a justice of the peace of Buffalo county, with having on or about the eighth day of October, 1884, in the county aforesaid, committed an offense of burglary and larceny, and thereupon caused the issuing of a warrant and arrest of the plaintiff; that such proceedings were thereafter had, which resulted in the acquittal and discharge of plaintiff, and the prosecution was ended. The usual allegations of injury and damage, and demand for judgment follow. The defendant in his answer, in substance, admitted the arrest and conclusion of the prosecution, but alleged that at the time of the arrest he was a constable in the town of Kearney, Buffalo county, and that there was a burglary committed on the night of the seventh day of October, 1884, and on the eighth day of the same month, on due investigation, the defendant, with one Kavanaugh, was led to apprehend one Frank Dayton, on charge of committing said crime; and that Dayton, without any coercion, or favor or promise of any reward whatever, made to the defendant and Kavanaugh a confession, wherein he said that he, in company with the plaintiff herein, and one Jacob Cornelius, had broken into the store building at the time and in the manner charged. It is further alleged that the defendant submitted the facts stated by Dayton, impartially, fully, and freely, to a respectable attorney, who advised defendant that the facts constituted sufficient cause for the arrest of plaintiff. It is denied that the complaint was made falsely, maliciously, and without probable cause. The reply consisted of a denial of the allegations of new matter contained in the answer. A trial was had resulting in a verdict and judgment in favor of defendant. Plaintiff prosecutes error to this court.

Upon the trial plaintiff offered in evidence transcripts from a justice of the peace and county judge, showing that a complaint had been made before a justice of the peace on the date alleged, charging the plaintiff with the crime of burglary and larceny; that he was arrested on said charge, and detained in custody until the tenth day of said month, at which time the case was dismissed at the request of the prosecution, and plaintiff was discharged from custody. Plaintiff also called as a witness his father, Daniel A. Dorsey, who testified as to the amount of money expended in procuring a discharge of plaintiff in error, and that previous to the filing of the complaint plaintiff was employed in a store. Since such time he had been unable to again obtain employment. He also testified that, upon the night of the alleged burglary, plaintiff was at home, and that he had so informed defendant before defendant made the complaint. Plaintiff was also called as a witness, and testified to the arrest and detention. Plaintiff having rested his case, defendant was called as a witness in his own behalf. He testified substantially, that on the eighth day of October, 1884, he was the constable, and that on that morning he received information that a burglary had been committed, and he, in connection with Mr. Kavanaugh, began an investigation of the matter; that in the afternoon he arrested one Frank Dayton, charging him with the crime, basing his arrest upon a pair of pants supposed to be his, found in the store in which the burglary had occurred; that Dayton claimed the pants, (which was a pair of overalls,) and acknowledged his guilt, and stated that plaintiff and one Cornelius were with him, and were parties in the crime. Upon his cross-examination he admitted that he saw the father of...