Harpham v. Whitney
| Decision Date | 31 January 1875 |
| Citation | 1875 WL 8259,77 Ill. 32 |
| Parties | EDWIN B. HARPHAM et al.v.CASSIUS G. WHITNEY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.
This was an action on the case, brought by Cassius G. Whitney against Edwin B. Harpham, Thomas Covington, Isaac Vail, Benjamin A. Rosebrough, Samuel C. Conwell, John W. Pitman, and twelve others, for an alleged malicious prosecution. The suit was brought in the circuit court of Mason county, and, on the plaintiff's application, the venue was changed to Menard county, and afterwards, on the motion of the defendants, to Morgan county.
The first count of the plaintiff's declaration, in substance, states, that he was State's Attorney, and practicing law in Mason county, and had always sustained a good reputation, and conducted himself righteously, faithfully and honorably in the discharge of his duties, and was not guilty of any of the charges preferred against him, or suspected of the same, and had deservedly obtained the good opinion and credit of his neighbors and other good citizens in said county, but that the defendants, well knowing the premises, but greatly envying the happy state of the plaintiff, contriving and maliciously intending to injure his good name, etc., among his neighbors and others, and cause him to be suspected, as such State's Attorney and attorney at law, as having been guilty of offenses and misconduct against the laws of this State, and to injure, vex and ruin him, and cause him to be imprisoned, and to put him to great expense and thereby impoverish him, on the 30th day of June, 1870, at the circuit court of Mason county, State of Illinois, caused the plaintiff to be indicted for divers trespasses, felonies and other misdemeanors, setting out the indictment of the grand jury in hæc verba, charging the plaintiff with corruption in office, in accepting money from one Florence Bastain, charged with selling liquor without license, and in consideration thereof neglecting, corruptly, to prosecute said Bastain therefor, stating the impanneling of the jury, the trial and acquittal of the plaintiff, and charging the defendants with maliciously prosecuting the indictment to trial, etc., by means of which the plaintiff was compelled to expend large sums of money, to-wit: $1000, in his defense, and suffered great pain of body and mind, and was also hindered in business transactions for twelve months, and suffered damage in his feelings and credit, and was very much impoverished.
The second count charged the defendants with having falsely, wilfully, and without probable cause, procured the indictment of the plaintiff by the grand jury of Mason county, Illinois, setting out the indictment in hæc verba, in which the plaintiff was charged with unlawful, wilful and palpable neglect of duty in not having witnesses subpœnaed to attend for the trial of one William J. Chamblin, who was indicted in said county for soliciting another to commit a felony, and negligently and unlawfully permitting the cause to be continued, which indictment was regularly returned into court by the said grand jury, and nol pross'd by the defendants, and plaintiff discharged.
The declaration was afterwards amended, setting forth that defendants maliciously prosecuted the plaintiff, and setting forth the petition signed by E. B. Harpham and fifty-four others, addressed to the Hon. Chas. Turner, judge of the 21st judicial circuit, and asking that Cassius G. Whitney be removed from his position as an attorney and counselor at law, and officer of that court, and be debarred the further privileges thereof, and that he be suspended from the discharge of his duties until the grand jury should be able to investigate the charges brought against him, which are, in brief: malfeasance, partiality, neglect and failure to recover and prosecute for moneys due on fines, etc.; failure to promptly prosecute; oppression of witnesses by causing them to be subpœnaed term after term, and keeping them in attendance, and negligently permitting the causes to be continued; taking sums of money from persons accused of crime, and nol prossing the indictments against the same, in accordance with wilful and corrupt agreements so to do; that he received and took money from one Obadiah Scott, in consideration of which he nol pross'd an indictment for horse stealing; that he received of Florence Bastain $75, and nol pross'd two out of four indictments, and allowed him to plead guilty to two, and be fined small amounts; that in consideration of money received from the accused and friends, he gave up evidences of indebtedness and nol pross'd an indictment against Samuel H. Elliot for forgery; that he compounded with Stilts and Pounds, who had been indicted for a riot; that he failed to prosecute certain persons indicted for the larceny of sheep, and oppressed witnesses by compelling their attendance for a great length of time unnecessarily; and that he failed to pay over money to the county superintendent of schools. The defendants pleaded the general issue. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for $5000.
It appeared that Samuel C. Conwell was employed by the board of supervisors of Mason county in getting up the prosecution against the plaintiff, and acted under the advice of the circuit judge in getting up the petition. He had before been employed to assist the plaintiff in prosecuting the indictment against Pounds and Stilts for riot. He testified that, a short time after he was employed in the case, and while talking with the witnesses, he saw Whitney and the father of Pounds go into a little back room, and when they came back Whitney had the case settled by having defendants plead guilty, and having them fined $5 each; that the prosecuting witnesses were then in the court room, but were not called. The court refused to allow this witness to testify that Whitney called no witnesses and made no proof to the court of the nature of the offense. The witness was then asked to “state to the jury what was the charge against Pounds and Stilts, and state the facts and circumstances of the alleged charge against them,” as the same had been given him from the witnesses.
The court sustained an objection to the question, and refused to allow the same to be answered.
The defendants also offered to show that the prosecutions against Samuel Elliott were never brought to trial; that after the venue was changed to Menard county, each of them was stricken from the docket by leave of the court. The court refused to let the record go to the jury, because these causes were disposed of subsequently to the presentment of the plaintiff.
The other material facts of the case are substantially stated in the opinion of the court.
Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for the appellants.
Messrs. DUMMER & BROWN, for the appellee. Mr. JUSTICE SHELDON delivered the opinion of the Court:
This was an action on the case for an alleged malicious prosecution. The case, in general, was this:
Appellee was State's Attorney of the 21st judicial circuit, in this State. The board of supervisors of Mason county, in said circuit, had employed two of the appellants, Conwell and Pitman, attorneys at law, to prosecute legal proceedings against appellee, on account of alleged official delinquencies, some of them affecting the interests of the county in respect of its revenues. In pursuance whereof, Conwell applied to the circuit judge of the circuit to ask his counsel in respect to the matter. The judge signified that the proper way might be to bring the matter before him by a petition signed by prominent citizens.
Accordingly, at the next term of the court, in June, 1870, a petition signed by sixty-one citizens of the county was presented to the court, containing sundry charges of official misconduct on the part of appellee, and six specific charges, and asking that, upon a hearing, appellee be removed from his position as attorney and officer of the court, and be suspended from the discharge of his duties as State's Attorney until the grand jury could investigate the charges, and that some one be appointed to conduct the investigation. The grand jury were brought into court, the petition submitted to them, and Mr. Pitman, one of the appellants, and a signer of the petition, was appointed special prosecutor.
The grand jury found two bills of indictment against the appellee, one of them for...
To continue reading
Request your trial
-
United States v. Green
...765; Lacy v. Mitchell, 23 Ind. 67; Hays v. Blizzard, 30 Ind. 457; Driggs v. Burton, 44 Vt. 124; Mitchell v. Wall, 111 Mass. 492; Harpham v. Whitney, 77 Ill. 32. There is reasonable ground for believing a person guilty of a crime when the only fact proved is just as consistent with his innoc......
-
Rodgers v. Peoples Gas Light & Coke Co.
...which refutes that inference. Frye v. O'Neill, 166 Ill.App.3d 963, 977, 117 Ill. Dec. 882, 520 N.E.2d 1233 (1988), quoting Harpham v. Whitney, 77 Ill. 32 (1875). Malice, as an element of malicious prosecution, is proved by showing that the prosecutor was actuated by improper motives. Swick,......
-
Johnson v. Target Stores, Inc.
...ground for belief of the guilt of an accused may be on information from other persons as well as on personal knowledge. (Harpham v. Whitney (1875), 77 Ill. 32, 40; Mangus v. Cock Robin Ice Cream Co., [52 Ill. App.3d 110,] 117 [9 Ill.Dec. 769, 367 N.E.2d 203 (1977)]). It is not necessary to ......
-
Beaman v. Freesmeyer
...¶ 63, 368 Ill.Dec. 189, 983 N.E.2d 993 ; People v. Love , 199 Ill. 2d 269, 279, 263 Ill.Dec. 808, 769 N.E.2d 10 (2002) ; Harpham v. Whitney , 77 Ill. 32, 42 (1875). A mistake or error that is not grossly negligent will not affect the question of probable cause in an action for malicious pro......