Harper v. Harper.

• Decision Date: 07 September 1901
• Citation: 49 W.Va. 661
• Parties: Harper v. Harper.
• Court: West Virginia Supreme Court

49 W.Va. 661

Harper

v.Harper.

Supreme Court of Appeals of West Virginia.

Decided September 7, 1901

1. Prisoner Right to Examine Witnesses.

Under section 12, chapter 156, Code, it is the duty of any justice before whom any person is brought for an offense, if demanded by such person, as soon as may be to examine on oath in the presence of the accused, the witnesses for, as well as those against him. (p. 666).

2. Malicious Prosecution Probable Cause Discharge.

In an action for malicious prosecution, the discharge by a justice of the plaintiff, who has been arrested and brought before him for examination, or the refusal of the grand jury to indict him, is prima facie evidence of a want of probable cause, ex-cept in a case where it shall appear that such discharge, or refusal to indict, was after the hearing by the justice or the grand jury of the witnesses for the accused as well as for the prosecution, and such prima facie evidence is liable to be rebutted by proof, and syl. 16, Vinal v. Gore and Gompton, 16 W. Va. 1, is modified accordingly, (p. 668).

Error to Circuit Court, Kaleigh County.

Action by Lee Harper, by his next friend, against H. H. Harper. Judgment for plaintiff, and defendant brings error.

Reversed.

McCreery & Keatley and A. P. Parley, for plaintiff in error.

James PI. McGinnis, for defendant in error. McWhorter, Judge:

Lee Harper, who sued by his next friend, W. T. Harper, brought his action of trespass on the case in the circuit court of Kaleigh County against H. H. Harper. Defendant appeared and demurred to the declaration and to each count, which demurrers being argued, were overruled by the court. The defendant then entered his plea of not guilty, and tendered.three special pleas in writing, when it was agreed by the plaintiff on the record that the defendant might introduce any evidence in defense of the action, relevant under any special pleas which could be properly pleaded. A jury was then impaneled and having heard the evidence returned their verdict in favor of the plaintiff, assessing his damages at five hundred dollars. The defendant moved the court to set aside the verdict of the jury as contrary to the law and the evidence in the case and to arrest judgment upon said verdict, of which motions the court took time to consider, and afterwards overruled the same, and entered judgment upon the verdict, to which rulings of the court defendant excepted and filed a bill of exceptions setting forth the various exceptions saved to him in the courrse of the trial. Defendant obtained a writ of error, and assigned first as error the overruling of his demurrers to the declaration and each count thereof. Counsel for defendant give two reasons why the demurrer should have been sustained, first, "for the reason that the evidence adduced clearly proves that a felony had been committed (see section 5, chapter 145, Code) and it was the undoubted right and duty of defendant to detain the suspected parties until an officer could be secured," and cites many authorities touching his right and duty to make the arrest, etc. Of course, what the evidence adduced showed or proved had nothing to do with the sufficiency of the declaration. Their other point is that the declaration failed to set forth the alleged malicious prosecution or arrest. The declaration is substantially in the form laid down in Hogg's Pl. and Forms, 337, and shows good cause of action. Second assignment, that the court erred in permitting the transcript of the justice's docket and the warrant issued by William M. Eogers, the justice, on the 17th of October, 1896, to be given in evidence to the jury. It is claimed by counsel for appellant that the action of the justice was irregular, and if he had proceeded in the regular manner the judgment would have been different in form, citing section 15, chapter 156, Code, on the theory that the justice should only examine the witnesses for the prosecution to ascertain whether there was probably cause for holding the accused to answer further. P>ut section 12, same chapter, provides that "The justice before whom any person is brought for an offense, if demanded by such person, shall as soon as may be, in the presence of such person, examine on oath, the witnesses for and against him, and he may be assisted by counsel." The proceeding was not irregular, but such as was authorized by statute. The judgment of the justice was "After hearing all the evidence on both sides it is considered by me that the prisoner is not guilty and is hereby acquitted." In Sullivan v. Myers, 28 W. Va. 375, plaintiff had been arrested and taken before a justice charged with a misdemeanor and without lawful authority a jury of six were sworn to try the question of his guilt and rendered a verdict of not guilty, upon which the justice discharged the prisoner. Upon the trial for malicious prosecution the transcript of the docket of the justice showing what took place at the trial and the verdict and judgment was offered in evidence by the plaintiff, and the whole transcript was objected to by the defendant, and the objection was overruled and the transcript admitted. It was held, "No error sufficient to reverse the judgment."

The judgment was proper evidence as showing a discharge, yet it appearing that the justice tried the question of guilt of the

party and heard the evidence on both sides for and against the plaintiff, the judgment so admitted is entitled to very little weight. It is said in Hale v. Boylen, 22 W. Va, 240, "In an action for malicious prosecution the burden of proving want of probable cause is, in the first instance on the plaintiff: for the law presumes that every public prosecution is founded on probable cause. But as want of probable cause is a negative proposition necessarily difficult of proof, slight evidence is regarded sufficient to prove such want of probable cause," citing Vinal v. Core &c. 18 W. Va. 1, (41); Williams v. Taylor, 6 Bing. 19 (E. C. L. 49); Taylor v. Williams, 2 B. & Ad. 815, (22 E. C. L. 199); Cotton v. James, 1 B. & Ad. 128, (20 E. C. L. 360). ''But slight as the evidence is, that is necessary to prove in the first place, a want of probable cause, yet there are many cases which hold that the acquittal of the plaintiff by a jury will not even amount to prima facie evidence of such want of probable cause, though some have said such acquittal would amount to prima facie evidence of such want of probable cause, and thus throw the burden of showing that there was probable cause on the defendant. It is obvious, therefore, from the decisions, that if the acquittal of the plaintiff is any evidence at all on the question of whether there was or was not probable cause, it is entitled to very little weight," In Williams v. Van Meter, 8 Mo. 339, it is held, "In an action for malicious prosecution, the bare acquittal of the plaintiff is not sufficient evidence of the want of probable cause," and in Griffin v. Chubb, 7 Texas 603, "Where the prosecutor appeared and testified as a witness at the trial and the defendant was acquitted by the verdict of the jury. Held, in an action against the prosecutor for malicious prosecu-tion the defendant's acquittal did not raise the presumption of the want of probable cause." In Heldt v. Webster, 60 Tex. 207. where the trial court charged the jurry that if the plaintiff was discharged by the examining magistrate then the presumption of law is that there was no probable cause; but if the evidence further showed that defendant had reasonable cause to believe, and did believe that the facts stated in the complaint were true, then he would have such probable cause as the law contemplated. The charge was held to be erroneous, because (1) "the discharge of the defendant in a crimnal prosecution does not raise the presumption of want of probable cause. (Following Griffis v. Chubb, 7 Tex.) (2) The want of probable cause is a question of fact for the jury to determine, and such charge gave to that fact a prominence to which it was not entitled." Here the court holds the discharge of the defendant in a criminal prosecution by the examining magistrate as the equivalent of a verdict of not guilty by the jury in so far as it raises no presumption of want of probable cause, and very properly so, because when the examining justice hears all the evidence for and against the accused and acts upon it, he has gone beyond inquiring as to the probable cause for holding the accused to answer an indictment for the offense and has weighed the evidence and passed upon the guilt or innocence of the accused, as a jury would do upon the trial of an indictment. Where a grand jury or a justice examines only the evidence for the prosecution to ascertain whether there be grounds for indictment against the accused, and the grand jury refuses to indict him or the justice discharges him from arrest, it is prima facie evidence of want of probable cause, but it may be rebutted by proof. Ganea v. Railroad Co., 51 Cal. 140. As said in Brady v. Stiltner, 40 W. Va. 289, "In determining whether the prosecution was founded on probable cause, the existing state of facts must be reviewed from the standpoint of the prosecution, and not from that of the accused. For this reason, trial and acquittal do not raise the presumption of the want of probable cause. Verdict of acquittal may be given notwithstanding probable cause, because there is not proof of guilt beyond a reasonable doubt. But the magistrate and grand jury have the very question of probable cause to try and the evidence on the part of the prosecution is alone examined, and the proceeding is entirely ex parte, at...