Engelke v. Chouteau
Decision Date | 18 November 1889 |
Citation | 98 Mo. 629,12 S.W. 358 |
Parties | ENGELKE v. CHOUTEAU. |
Court | Missouri Supreme Court |
Appeal from St. Louis circuit court; ELIJAH ROBINSON, Judge.
Hitchcock, Madill & Finkelnburg and Valle Reyburn, for appellant. Frank J. Bowman, for respondent.
This was an action for malicious prosecution, in which Charles P. Chouteau, John M. Glover, and Joseph Livingston were made defendants. The cause was dismissed as to Glover and Livingstone. The petition contained two counts. In the first count the defendants are charged with having maliciously procured the indictment of the plaintiff by the grand jury of the city of St. Louis for an alleged fraudulent conspiracy with one Edward P. Barrett to defraud one Alice Livingston and others interested in a certain corporation known as the Windsor Hotel Company, and with having after the finding of said indictment, without probable cause, maliciously prosecuted said indictment against the plaintiff. In the second count the defendants are charged with having maliciously caused the arrest of the plaintiff, and his prosecution upon a false affidavit and complaint for the same alleged fraudulent conspiracy. The defendant Chouteau answered denying all the allegations of the petition. On the issues joined between him and the plaintiff, the jury found for the plaintiff on the first count, and assessed his damages at $7,500, and for the defendant on the second count. The defendant appeals.
At the close of the plaintiff's evidence the defendant asked an instruction in the nature of a demurrer to the evidence, and at the close of all the testimony asked a like instruction. The jury having found for the defendant on the cause of action set up in the second count of the petition, all questions arising upon the trial of that issue are eliminated from the case. The question whether the demurrer to the evidence upon the first count should have been sustained, if resolved in favor of the defendant, is decisive of the case, and will be first considered.
On the 18th of July, 1882, the grand jury of the criminal court of St. Louis returned into said court an indictment against Charles H. Peck, Edward P. Barrett, and Bernard H. Engelke, charging them with a fraudulent conspiracy to cheat and defraud Sallie A. Livingston, Joseph H. Livingston, and the Windsor Hotel Company of their and its property, by means of a certain promissory note, and deed of trust in the nature of a mortgage to secure the same, executed by the said Bernard H. Engelke in the name of said company, by him as president thereof, on the 27th of February, 1882, and by a subsequent sale thereafter made of said property under said deed of trust. The defendant Charles P. Chouteau was a member of that grand jury. The offense charged in the indictment being a misdemeanor, it was certified to the court of criminal correction, under the statute, and was filed in the office of the clerk of that court on the same day that it was returned. On the 22d of July, 1882, the said Peck commenced a civil action against Chouteau, growing out of some transactions connected with the Vulcan Iron-Works, a corporation in which both of them had theretofore been interested. Depositions were being taken in this case from time to time between that date and the 1st of September following. On one occasion, about the latter date, when the parties were thus engaged, the fact that Peck had been indicted was alluded to by some one present. Peck, in a threatening manner, replied, "Yes; and Mr. Chouteau was at the bottom of it, and I will make him smart for it," or "somebody will have to suffer for it." Judge Madill, who was of counsel for Chouteau, and engaged in taking the depositions, replied to this remark: "Mr. Peck, that is a very broad statement to make." Judge Madill and Mr. Chouteau, after leaving the office of Mr. Woodward, where the depositions were being taken, went to Judge Madill's office, where Mr. Peck's language became the subject of conversation between them.
Judge Madill, in his evidence, thus states what then passed between them:
In pursuance of this suggestion, a short time after this interview the defendant employed Mr. John M. Glover. The extent of his employment was shown by the following evidence of Mr. Chouteau in a deposition, and as preserved in a bill of exceptions on a former trial in the case of Barrett v. Chouteau, 94 Mo. 13, 6 S. W. Rep. 215, introduced by the plaintiff. Mr. Chouteau was asked: The witness' attention was then called to the following answer made by Mr. Glover in a deposition given by him in this case: "I was last employed in the prosecution of Peck, Engelke, and Barrett under the indictment of conspiracy to defraud that was tried before Thoroughman;" and he was asked whether that statement was true or false: In his examination in the Barrett Case, Mr. Chouteau was asked why he testified in his deposition, before he knew that Mr. Glover had given his deposition in the case, that he did not employ Mr. Glover to prosecute the indictment against Mr. Peck, Mr. Engelke, and Mr. Barrett, and his answer was: Witness was then asked whether he did not employ Mr. Glover to prosecute that indictment. Witness answered that there was a severance of the parties, though not at the time when Mr. Glover was employed, and continuing said:
On the 15th...
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