Hall v. Britt.

• Decision Date: 20 April 1931
• Docket Number: No. 3556.,3556.
• Citation: 35 N.M. 371,297 P. 987
• Parties: HALLv.BRITT.
• Court: New Mexico Supreme Court

35 N.M. 371

297 P. 987

HALL

v.BRITT.

No. 3556.

Supreme Court of New Mexico.

April 20, 1931.Rehearing Waived April 25, 1931.

Syllabus by the Court.

Prosecutor who fully and fairly stated facts to justice and honestly instituted prosecution following justice's advice is not liable in damages; one making false statement to justice and participating in design to bring on malicious prosecution is liable to person prosecuted.

If the prosecutor, before instituting a prosecution, for a petty offense within the jurisdiction of a justice of peace, fully and fairly stated the facts and circumstances to a justice of the peace, and was advised by him that they constituted a reasonable cause for the arrest of the plaintiff, and honestly acted in good faith under such advice, no action can be sustained for the prosecution; but not so if he makes a false statement and participates in the design and purpose to bring on a malicious prosecution.

Instruction in malicious prosecution action that justice's advice to defendant should be considered in mitigation of damages only held error, in view of previous instruction.

Having given an instruction embodying the principle set forth in preceding paragraph, it was error for the court to further instruct the jury that the evidence as to the advice of the justice of the peace and matters leading up thereto should be considered in mitigation of damages only.

Appeal from District Court, Chaves County; Richardson, Judge.

Action by C. E. Hall against D. R. Britt. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Instruction in malicious prosecution action that justice's advice to defendant should be considered in mitigation of damages only held error, in view of previous instruction.

Reese & Reese, of Roswell, for appellant.

J. C. Gilbert and J. B. McGhee, both of Roswell, for appellee.

BICKLEY, C. J.

Appellant prosecuted appellee in a justice of the peace court for an assault with words. Appellee was acquitted and thereafter brought suit against appellant for malicious prosecution. Upon this appeal appellant claims that the court erred in giving certain instructions to the jury. As to some of these, we find the contention of appellant under the record in this case to be without merit.

[1][2] We think instruction No. 17, which declares that, if the criminal prosecution was commenced for the purpose of collecting a debt due defendant from plaintiff, or for the purpose of punishing plaintiff for not paying said debt, and not for the purpose of vindicating the law, then from such facts, the jury would be justified in finding that the criminal prosecution was commenced by defendant from malicious motives, is permissible under some circumstances, but we do not think the present record justifies giving such instruction.

We find, however, that the trial court was in error in giving its instruction No. 19, which was as follows: “You are instructed that the court has admitted certain testimony in this cause to be given by the defendant as to what the defendant told the Justice of the Peace, W. C. Winston, at the time he signed the complaint introduced in evidence in this case. This testimony was allowed and permitted in mitigation of the offense charged against the defendant and of the damages therefor, and if you believe from all the evidence that the defendant made a full, fair and complete statement and disclosure to the Justice of the Peace at the time and before the Justice of the Peace drew the complaint which the defendant signed, then it will be your duty to take into consideration in mitigation of the damages that you may allow the plaintiff in ...