Fugate v. Millar

• Decision Date: 28 March 1892
• Citation: 19 S.W. 71,109 Mo. 281
• Parties: FUGATE v. MILLAR.
• Court: Missouri Supreme Court

19 S.W. 71

109 Mo. 281

FUGATE v. MILLAR.

Supreme Court of Missouri, Division No. 1.

March 28, 1892.

MALICIOUS PROSECUTION — PROBABLE CAUSE — INSTRUCTIONS.

1. In an action for malicious prosecution upon an unequivocal charge of grand larceny, it is not error to refuse an instruction which contains nothing beyond what is stated in previous instructions, except a definition of "grand" and "petit" larceny.

2. The giving of an instruction that an inference of malice may be made from want of probable cause is not reversible error when the jury are told in other instructions that the inference is simply one of fact, not conclusive, but to be weighed with all the other facts and circumstances in the case, from which they must find malice affirmatively, as an independent fact, before the plaintiff can recover.

3. An instruction which predicates a right of recovery upon "express malice" and want of "probable cause," as defined in a previous instruction, is not erroneous.

4. The malicious prosecution complained of was based upon the charge that plaintiff had entered upon defendant's land and cut her timber in excess of the amount sold to him, and after notice to desist. An instruction that if the jury believe such charges to be true, and that defendant then consulted with lawyers and laid before them the facts of the case, and said lawyers advised her to bring the criminal suit, then, in such case, there was probable cause for the prosecution, is not error, when such "advice" is relied upon as a defense, and the sense in which the word is used in the instruction is fully explained in defendant's instructions.

Appeal from circuit court, Mississippi county; H. C. O'BRYAN, Judge.

Action for malicious prosecution by James Fugate against Fannie Millar. Plaintiff obtained judgment. Defendant appeals. Affirmed.

Wilson & Cramer, for appellant. Thoroughman & Cantwell, Jos. T. Wilson, and R. B. Oliver, for respondent.

BRACE, J.

This is an action for damages against defendant for maliciously preferring and prosecuting a criminal charge of grand larceny, in which the plaintiff was charged with stealing a certain lot of timber, the property of the defendant, of the value of $75, on which the plaintiff was arrested and tried before a magistrate, and discharged, and the prosecution ended. The plaintiff obtained judgment for $4,000, and the defendant appeals.

It appears from the evidence that the defendant is the owner of a large landed estate, and the plaintiff was engaged in running a saw-mill in the neighborhood; that a parol agreement was made between them by which the plaintiff was to have all or some of the cypress trees fit for lumber on an 80-acre tract of the defendant, to be paid for in lumber; that plaintiff commenced cutting the cypress trees, and delivered the greater part of the lumber to the defendant, in pursuance of the terms, when a disagreement seems to have arisen between them as to its terms; defendant contending that the plaintiff was only to have 72 cypress trees, and the plaintiff that he was to have all the cypress trees on the tract. The result was a lawsuit before a justice of the peace, in which the defendant recovered a small judgment against the plaintiff, and he appealed to the circuit court. Pending the appeal, a survey was made of the defendant's 80-acre tract, and the fact was disclosed that some of the trees cut, and for which she had charged in her account, were not on the land, and she dismissed her suit. The plaintiff, by his hired hands, continued cutting and hauling the cypress trees to his mill as before, and the defendant caused a notice to be served upon him and his workmen to cease so doing, which notice he neglected or refused to obey; and thereupon she instituted a criminal proceeding by swearing out a warrant against him for grand larceny. The plaintiff was arrested, brought before an examining magistrate, and prosecuted by the defendant and her attorney, a nephew of hers, who also had been her attorney in the civil suit, and the plaintiff discharged. Afterwards she appeared before the grand jury, but no bill was found. It appears plainly from the evidence that there was no probable cause for the prosecution, and there was evidence tending to prove malice. Several objections are urged against the action of the court in admitting evidence for the plaintiff, and rejecting evidence for the defendant; but upon a careful reading of the whole evidence, and a consideration of each of these objections, we find no reversible error in the rulings of the court in this behalf.

The case was submitted to the jury on the following instructions: At the request of the plaintiff: "No. 1. If the jury believe from the evidence that the prosecution of the plaintiff before W. G. Lee, a justice of the peace, was without probable cause on the part of defendant, Fannie Millar, then you may infer that said prosecution was malicious, and, if you so find, you ought to return a verdict for the plaintiff. By `probable cause' is meant a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offense with which he is charged. `Malice' means a wrongful act done intentionally, without legal justification or excuse. No. 2. If you believe from the evidence that the defendant willfully, maliciously, and without probable cause did swear to and make affidavit before W. G. Lee, a justice of the peace, and did falsely and maliciously and without probable cause charge the plaintiff with having committed grand larceny by feloniously stealing, taking, and carrying away a quantity of her timber, and did willfully, falsely, and maliciously, and without probable cause, procure and cause the arrest of plaintiff upon said affidavit, and the warrant issuing upon it, and did thereby require and compel plaintiff to give bond for his appearance to answer said alleged offense, and that plaintiff was, in accordance with the conditions of said bond, compelled to appear before said W. G. Lee, and that he did appear, and was by said W. G. Lee discharged, then your verdict should be for the plaintiff. No. 3. The issue for the jury to try in this case is, not the guilt or innocence of James Fugate of the crime alleged against him in the affidavit, but the issue is whether, from the facts and circumstances given in evidence, the defendant acted maliciously and without probable cause; and on this issue you are further instructed by the court that the discharge of the plaintiff, by W. G. Lee, the examining justice, is prima facie evidence that the prosecution was without probable cause, but not conclusive proof of that fact. No. 4. If the jury find from the evidence that the defendant in said prosecution was actuated with hostile, angry, and vindictive...