Haskins v. Ralston

• Decision Date: 02 March 1888
• Citation: 69 Mich. 63,37 N.W. 45
• Court: Michigan Supreme Court
• Parties: HASKINS v. RALSTON ET AL.

37 N.W. 45

69 Mich. 63

HASKINS v. RALSTON ET AL.

Supreme Court of Michigan

March 2, 1888

Error to circuit court, Ionia county; VERNON H. SMITH, Judge.

Action for malicious prosecution by Louis E. Haskins against Andrew M. Ralston and Oliver Benschoter. Judgment for plaintiff and defendants appeal.

CAMPBELL J.

Plaintiff recovered judgment in the circuit court for the county of Ionia against defendants for $266 damages. His grievance consisted of being arrested and confined for about 13 days on a charge of forgery, from which he was finally discharged on the preliminary examination. A chief question presented to us is whether the suit was for malicious prosecution or false imprisonment. A subordinate question is whether the warrant issued by the examining magistrate to bring the plaintiff before him for examination was void. When the case went to the jury, the court below held it was a suit for false imprisonment, and held the warrant void on its face. This left nothing for the jury but to assess the damages, if defendants were responsible for its issue, as it was held there was enough to authorize the jury to so conclude.

The first count in the declaration is admitted to be for malicious prosecution, and was abandoned on the trial. As we have held that counts for false imprisonment and malicious prosecution may be joined, under our practice, this left the case to proceed on the other count or counts; for the plaintiff claims there were three counts, and not two. Long v. Judge, 27 Mich. 164.

The only count on which plaintiff relies is what he calls the "second count." If there is a third count, it does not allege a false imprisonment beyond what was set up in the second count. If it is really an appendage to the second count, it merely sets up matters in aggravation. The second count, in effect, charges that the defendants maliciously and falsely, without probable cause, and without making investigation into the truth of the matter, and without informing the prosecuting attorney "charged the said plaintiff with having committed a certain offense punishable by law, to-wit, uttering and publishing as true a certain false, forged, and counterfeited promissory note for the payment of money, knowing said promissory note to be false, forged, and counterfeited, with the intent to defraud and injure as aforesaid;" and that defendants, on the 21st of November, maliciously, and without reasonable or probable cause, and without investigation or inquiry to ascertain the truth thereof, caused plaintiff to be arrested and imprisoned for 13 days, at the expiration of which time he "was duly discharged, and fully acquitted of the said supposed last-mentioned offense," etc. The charge set forth in this count is not only substantially, but technically, correct, in describing an offense for which a justice had jurisdiction to hold an examination for commitment for trial at the circuit. The count charges inferentially at least, that the arrest was for examination before a justice, because it proceeds to state that plaintiff was not only discharged finally, but "duly discharged and fully acquitted." There could be no discharge joined with an acquittal, except upon a hearing upon the charge. It is not alleged in this count that there was an arrest on a bad warrant, or without a warrant, or that the warrant was issued irregularly. This is very clearly a charge of malicious prosecution, and not a charge of illegal arrest and false imprisonment. But the case would not be improved if the action had been for false imprisonment. On the trial, a warrant was produced which appears to have been issued after a preliminary examination of defendants, and which sets out the acts plaintiff was charged to have done. The offense is charged in these words, after an introduction which will be referred to hereafter: "That heretofore, to-wit, on the 28th day of October, A. D. 1882, at the township of Sebewa, in the county aforesaid, one Lewis Haskins did utter and publish as true a certain false, forged, and counterfeited promissory note for the payment of money, which said false, forged, and counterfeited promissory note for the payment of money was dated Sebewa, Michigan, October 28, 1882, for the sum of thirty-five dollars, with interest, and made due and payable thirty days after date, and signed with the name, 'Oliver Benschoter;' he, (the said Lewis Haskins), at the time he so uttered and published the said false, forged, and counterfeited note for the payment of money as aforesaid, well knowing the same to be false, forged, and counterfeited; against the form," etc. It is claimed in this court that this warrant is bad, because it does not aver the uttering and publishing to have been with intent to defraud, which is the statutory addition to the other elements of crime charged. It would be sufficient to say, in this matter, that the court below did not decide the warrant bad on any such ground. And, furthermore, it is not charged in the declaration that the warrant was bad for this reason, or for any other reason shown on its face; on the contrary, the declaration sets forth that the arrest was for a charge containing all the elements of a statutory crime, including the fraudulent intent. Both of these reasons are fatal to any attack on the warrant in ...