Hale v. Boylen.

• Court: West Virginia Supreme Court
• Writing for the Court: GREEN.
• Citation: Hale v. Boylen., 22 W.Va. 234 (W. Va. 1883)
• Decision Date: 29 September 1883
• Parties: Hale v. Boylen.

22 W.Va. 234

Hale

v.Boylen.

Supreme Court of Appeals of West Virginia.

Submitted September 15, 1883

Decided September 29, 1883.

1. In an action for malicious prosecution the weak presumption, that exists in every case, that every public prosecution is founded on probable cause, is strengthened by the proof, that the plaintiff had after an examination by a justice been committed to jail to answer an indictment when found, but it may be rebutted by other testimony showing that there was no probable cause for the prosecution. (p. 240.)

2. A case in which the prima facie presumption of probable cause always arising in an action for malicious prosecution was strengthened by the commitment of the plaintiff by a justice to answer an indictment, but in which the court held, that the facts proven by the plaintiff rebutted this strengthened presumption of probable cause, and that upon all the evidence the plaintiff had shown, that the prosecution was based on no probable cause. (p. 246.)

Green, Judge, furnishes the following statement of the case:

On November 27, 1882, B. T. Hale instituted an action of trespass on the case against F. A. Boylen in the circuit court of Ritchie county. At January rules, 1883, the declaration was filed, in which the plaintiff alleges, that the defendant on November 18, 1882, went before C. L. Zinn, a justice of said county, and falsely and maliciously and without any probable cause charged the plaintiff with having unlawfully and feloniously cut down and carried away fifty-three trees growing on the land of the defendant in said county, and falsely and maliciously without any probable cause procured said justice to issue a warrant to apprehend the plaintiff and bring him before said justice to answer said charge, and under this warrant caused the plaintiff to be arrested and taken before said justice, who on the hearing decided, that the plaintiff should be committed to the custody of the jailer of the county for a misdemeanor, and under the mittimus of said justice the defendant caused the plaintiff to be confined in the jail of Ritchie county for two days, from which he was released and discharged under a writ of habeas corpus issued by the judge of the circuit court of said county, who decided on the hearing of said habeas corpus, that the plaintiff was illegally detained in custody. The damages of the plaintiff in this declaration were laid at one thousand dollars. The defendant pleaded not guilty, and issue was joined thereon. On March 3, 1883, this issue was tried by a jury, and after the plaintiff had offered his evidence, the defendant moved the court to exclude the evidence offered by the plaintiff, and the court sustained this motion and excluded from the jury all the plaintiff's evidence, and therefore the jury found the defendant not guilty, and the court rendered thereon a judgment that the defendant recover of the plaintiff his costs.

The plaintiff during the trial of the case excepted to the ruling of the court excluding all his evidence from the jury, and the bill of exceptions sets out all the plaintiff's evidence so excluded. This evidence consisted, first, of the testimony given by the plaintiff himself, who proved the facts stated in the declaration, which we have hereinbefore stated; second, of the testimony of C. L. Zinn, the justice, that he issued the warrant to arrest the plaintiff upon the following affidavit of the defendant: "F. A. Boylen, under oath, says that on or about the 15th day of October, 1882, Hale Brothers did unlawfully enter my land on Spruce creek, in Ritchie county, West Virginia, and take therefrom timber which does not belong to them, and have since been repeatedly entering and taking timber from my land. I have notified them to stop, but they are still hauling on; and therefore pray that the above named parties be apprehended and dealt with according to law." The warrant was such as is described in the declaration, except that it issued against B. F. Hale and Joseph Hale partners doing business as Hale Brothers, and it recites that the complaint was, that they did unlawfully and feloniously cut down said trees standing on said Boylen's land; that he, the justice, tried the cause on November 22, 1882, and decided that there was probable cause to hold the plaintiff to answer an indictment at the circuit court; and he therefore issued a mittimus to the jailer of said county to receive the plaintiff into his custody and hold him to the next term of the circuit court, or until he was discharged by law. In this mittimus the charge is recited to have been a charge of a misdemeanor. The plaintiff being recalled testified, that lie went on the land of the defendant to cut timber under the following paper, which he obtained from M. S. Jeffreys, to-wit:

"M. S. Jeffreys bought of F. A. Boylen this the 7th day of June, 1881, seventy poplar trees located on Straight Fork of Spruce creek, Ritchie county, timber situated on the tract of land owned by F. A. Boylen.

"Received payment on the above ($70) seventy dollars, in cash.

''Witness my hand.

[seal.]

"M. S. Jeffreys is to take all the poplar timber on a certain tract of land that will measure eighteen in wood, twenty-four feet long, and John Britton and John Boylen are witnesses to this contract.

"F. A. Boylen." On the foregoing writing there is an endorsement in the words and figures following, to-wit:

Endorsement "I assign the within to J. C. Hale.

"M. S. Jeffreys."

He also testified, "that the facts testified by Boylen on the trial before the justice were that he (Boylen) had sold seventy trees of timber and more, if they were found on the tract of land, to M. S. Jeffreys, and that Jeffreys had paid him seventy dollars; that there were conditions in the sale to Jeffreys; that Jeffreys was to come and count and mark and pay for the same within two weeks; that Boylen was present at two different times while plaintiff was cutting timber; the first time plaintiff ever met him to know him, plaintiff told Boylen he had bought the timber and expected to cut and haul it. Boylen denied the paper which plaintiff showed him, and said it was a forgery; that he had signed his name to the paper, but there was writing in pencil above it which was not there when he signed it; and Boylen warned the plaintiff that he was trespassing on his land; that in the evening Mr. Wilson, plaintiff and Boylen met, and Wilson talked about compromising, and we agreed to meet and count and mark the trees and pay all over seventy trees; that they met and marked about twenty trees, and came to a tree lying down, and Boylen wanted to count that; that plaintiff did not want it and refused to take it; that Boylen said he had sold all poplar timber down and up; that they then set i., day when plaintiff agreed to have Jeffreys present; that Jeffreys, Boylen and plaintiff met and they failed to agree about counting the down timber, and no compromise was made, and the plaintiff went on after that cutting and hauling timber as before, and had cut something less than forty-five trees under that bill of sale."

On cross-examination, the plaintiff testified, "that what he had detailed above to the jury about Boylen and Jeffreys was what he had testified to substantially before the justice on the trial."

On being recalled, the plaintiff testified, "that lie did not know that there was any substantial difference between his and the defendant's testimony before the justice as to what had taken place between them in regard to the timber transaction. Jeffreys and Boylen, in their testimony before the justice, differed about the conditions and terms of the contract of sale of the timber."

And it was further shown by the plaintiff, that after the discharge of the plaintiff on the writ of habeas corpus, no further proceedings were had against plaintiff, and that the prosecution was ended and the plaintiff discharged. Plaintiff testified that Boylen admitted before the justice that he signed the paper, but denied that he had written the matter above his signature in pencil, except the names of John Britton and John Boylen; that Boylen had testified before the justice that he had written under a blank bill of sale a receipt for seventy dollars paid him on timber by Jeffreys; that the paper aforesaid was used as evidence on the trial of the warrant before the justice, and that Boylen had testified before the justice about other matters between him and other parties connected with the timber transaction." And the plaintiff gave in evidence an order, made by the judge of this Court in vacation on a writ of habeas corpus, discharging from arrest the plaintiff in this case.

M. S. Jeffries testified, "that the paper aforesaid was, as it now appears, signed by Boylen in his presence, in the road in front of John Britton's house, on the Straight Fork of Spruce creek, and was in evidence before the justice, and that Boylen on the trial before the justice testified that he did not do the pencil writing above his signature except that he had written the names of John Britton, John Boylen and his own; that Boylen testified before the justice that the witness Jeffreys was to take all the down timber, logs, &c, and the witness Jeffreys testified before the justice that he had agreed to take only one tree that was clown." And here the plaintiff rested.

The plaintiff obtained from this Court a writ of error and supersedeas as to the judgment of the circuit court of Ritchie.

R. S. Blair for plaintiff in error.

John A. Hutchinson for defendant in error.

Green, Judge:

The motion to exclude from the jury all the plaintiff's evidence, which was made in this case by defendant and sustained by the circuit court, ought not to have been sustained, unless upon a demurrer to the plaintiff's evidence the court ought to have sustained the demurrer, this motion to exclude the evidence being simply a substitute in our practice for a demurrer to the evidence. James & Mitchell v. Adams, ...