Fones v. Murdock

• Decision Date: 09 May 1916
• Citation: 80 Or. 340,157 P. 148
• Parties: FONES v. MURDOCK.
• Court: Oregon Supreme Court

157 P. 148

80 Or. 340

FONES v. MURDOCK.

Supreme Court of Oregon

May 9, 1916

In Banc.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Action by C. R. Fones against C. Murdock. Judgment for plaintiff and from an order setting aside such judgment and granting a new trial, plaintiff appeals. Affirmed.

In this action to recover damages for malicious prosecution the amended complaint upon which the trial was had contains the following averments:

"That on or about the 5th day of June, 1914, the defendant herein caused to be prepared and made a criminal complaint against the plaintiff herein which the said defendant duly verified as by law required and caused the same to be placed on file with R. McCrae, justice of the peace for Wallowa district for Wallowa county, Or., and that a warrant of arrest was issued thereon, and that the plaintiff herein was arrested upon the said warrant by the sheriff of the said Wallowa county, Or., upon a criminal charge, to wit, a charge of criminal trespass, and under and by which said arrest the plaintiff was held and detained of his liberty for a space of 12 hours, and that he was compelled to give an undertaking for his appearance in order to secure his release from custody.

"That in verifying the said criminal complaint against the plaintiff herein, and by which he was arrested and restrained of his liberty, the defendant herein was prompted by malice and knew that said accusation in said criminal complaint charging plaintiff herein with trespass was untrue, and that the said criminal complaint and the arrest and detention of the said plaintiff herein by the defendant was wrongful, unlawful and malicious and was done by the said defendant for the purpose of injuring and defaming the plaintiff herein and gaining possession of the property the plaintiff herein was accused of trespassing upon."

It is further stated, in substance, that after a trial in the justice's court the criminal action was appealed to the circuit court, where after a hearing the plaintiff in this civil action was acquitted. The remainder of the complaint is devoted to a rehearsal of damages. The amendment of the complaint was accomplished by interlineation, to which method the defendant by his counsel consented. As soon as the change was made the defendant asked leave to file a general demurrer to the new complaint; but the court denied the request on the ground that the defendant had consented to the alteration and that the plaintiff had agreed that the answer to the original complaint might stand as the answer to the new one. The answer was a general denial of the whole complaint. A motion for nonsuit made by defendant at the close of the testimony for the plaintiff raised the question of the sufficiency of the primary pleading, and was overruled. The trial resulted in a verdict and judgment for the plaintiff and the same was set aside and a new trial ordered on motion of the defendant. Whereupon the plaintiff appealed.

C. M Idleman, of Portland (J. A. Burleigh, of Enterprise, on the brief), for appellant. D. W. Sheahan, of Enterprise, and W. G. Trill, of Wallowa, for respondent.

BURNETT, J. (after stating the facts as above).

While it is not directly so stated in the complaint, we must necessarily infer that the plaintiff was convicted in the justice's court. We deduce this conclusion from the fact that it is stated that the criminal case was appealed to the circuit court. In such cases the defendant alone can appeal, and only when the judgment is that he pay a fine of not less than $20 or be imprisoned not less than ten days. L. O. L. § 2510.

It is thus requisite to determine the effect to be given to a judgment of conviction which was reversed on appeal as relates to the allegation of want of probable cause. Many authorities hold that, especially where the trial is by jury, a conviction, although subsequently set aside, is conclusive evidence of probable cause for the prosecution. The reasoning upon which the doctrine is based is that the issue was submitted to a court of competent jurisdiction and was decided adversely to the defendant in that proceeding, which means that it has been judicially determined, not only that there was probable cause to believe him guilty, but also that there is no reasonable doubt of his guilt. An acquittal on appeal goes no further than to establish that in the judgment of another set of triers there was a reasonable doubt about his culpability, leaving the existence of probable cause for the prosecution not necessarily disturbed. However this may be, the statement of the law most favorable for the plaintiff on this appeal is that a conviction, though afterwards reversed, is conclusive against want of probable cause, and will defeat an action...