Henning v. Miller

Decision Date08 March 1932
Docket Number1696
Citation44 Wyo. 114,8 P.2d 825
PartiesHENNING v. MILLER
CourtWyoming Supreme Court

Rehearing Denied September 29, 1932, Reported at: 44 Wyo. 114 at 141.

ERROR to District Court, Natrona County; PERCY W. METZ, Judge.

Action by Lillie L. Miller against W. F. Henning. Judgment for plaintiff and defendant brings error.

Reversed.

For the plaintiff in error there was a brief and oral argument by R R. Rose, of Casper, Wyoming.

Criminal prosecutions are presumed to have been instituted upon probable cause, and in good faith. In actions for criminal prosecution, plaintiff must establish by preponderance of the evidence that the prosecution was instituted maliciously without probable cause, and determined in favor of accused that accused was not guilty and that damages were sustained. The absence of belief by defendant that accused was guilty must be shown by substantial evidence. Defense of advice of counsel, is part of the element of probable cause, but unnecessary to defense if without it, there was probable cause. If there was probable cause for the prosecution, defendant cannot be held for damages, however maliciously it may have been instituted. Facts are to be determined by the jury, and whether the facts constitute probable cause for prosecution is a question of law for the court. Failure to prove any one of the necessary elements to a cause of action justifies a directed verdict for defendant. If the prosecuting attorney instituted a prosecution on his own initiative, the prosecuting witness is not liable. Actions for malicious prosecution are not favored by the law. 18 R. C. L. 11; 38 C. J. 481; McNair v. Ervin, (W. Va.) 99 S.E. 454. The burden of proof is on the plaintiff. McIntosh v. Wales, 21 Wyo. 397. The embezzlement prosecution of Miller was under 7134 C. S. 1920. Defendant testified that he believed Miller to be guilty. Sparling v. Conway, 75 Mo. 510; Simmons v. Gardner, L. R. A. 1915D 16; Franzen v. Schenk, (Cal.) 221 P. 932. If probable cause be shown, the existence of malice is immaterial. Brady v. Georgia Home Ins. Co., (Tex.) 59 S.W. 914; 38 C. J. 427-430; Van Meter v. Bass, 18 L. R. A. (N. S.) 4; R. R. Co. v. Holliday, (Okla.) 39 L. R. A. (N. S.) 205. Failure of prosecuting witnesses to disclose facts to his attorney, renders defense of advice of counsel unavailable only, when material facts are withheld, for example a failure to advise that accused was insane. Ind. Co. v. Henby, (Ind.) 97 N.E. 313; United Furn. Co. v. Wills, (Ky.) 167 S.W. 600, involving a disputed account; or a claim of ownership of cattle of which theft was charged. Rogers v. Mullen, (Tex.) 63 S.W. 897, or ownership of land upon which defendant was charged with unlawfully entering. Boyer v. Bugher, 19 Wyo. 463. The burden is upon plaintiff to show innocence of the criminal charge. 38 C. J. 459. Adams v. Lisher, 25 A. D. 102. Probable cause is defined as the existence of such facts as would excite belief in a reasonable man that the person charged was guilty of the crime for which he was prosecuted. Lancaster v. McKay, (Ky.) 45 S.W. 887; Wheeler v. Nesbit, 24 How. 551; Turner v. Dinnegar, 20 Hun. 467; Bartlett v. Brown, 75 A. D. 675. One guilty of a criminal act, although not of the crime charged, cannot recover in a malicious prosecution suit. Nettleton v. Cook, 163 P. 300. A prosecution for proven guilt, renders malicious motives immaterial. Plummer v. Cheen, (N. C.) 14 A. D. 572; Read v. Lindley, 240 S.W. 348. Plaintiff having failed to prove in the malicious prosecution case, that she was in fact, not guilty of the charge upon which she was prosecuted, she cannot therefore recover damages. Oil Co. v. Huff, 59 P. 624. It is not indispensable that a person having information sufficient to satisfy a prudent man, that another has taken his property and converted it to his own use, should obtain legal advice before securing the arrest of the wrongdoer. Frank v. Co., (Ky.) 200 S.W. 469; Sasse v. Rogers, (Ind.) 81 N.W. 590; Holt v. Follett, 65 Tex. 550; Dorr Co. v. Bk., 98 N.W. 918. It is the province of the jury to determine what the facts of the case are, and for the court to determine whether facts found, constitute in law, probable cause for prosecution. Bowers v. Walker, (Mo.) 182 S.W. 116; Hess v. Co., (Ore.) 49 P. 803; L. R. A. 1915D 1; Boyer v. Bugher, supra; 38 C. J. 509; Randall Inst. Vol. 1, p. 192, 193; Lewis v. B. & O. R. Co., (Md.) 17 A. R. 521. Where there is a conflict in the testimony, the jury have the right to believe one witness and disbelieve another, but their action must not be arbitrary or capricious. 40 Cyc. 4055, and Robertson v. Dodge, (Ill.) 81 A. D. 267; Clark, et al. v. McGrath, (Tex.) 22 S.W. 527. Punitive damages cannot be awarded without proof of actual malice. 38 C. J. 478-9. Miller never asked for a preliminary examination. The filing of the information was without suggestion, or request on the part of Henning. This is not sufficient to fix responsibility. 38 C. J. 395-6; Ryan v. Ins. Co., (Vt.) 119 A. 423. Whatever damages may have been sustained by Miller as a result of the filing of the information, are not chargeable to Henning. The court erred in giving Instructions Numbered 1, 4, 5, 7, 9, 10, 11, 12 and 13, and in refusing to give Instructions Lettered T and U, as offered by defendant. Henning had probable cause to believe Miller was guilty of the crime of embezzlement at the time complaint was filed before the justice of the peace. He consulted two licensed attorneys and acted upon their advice. He was not actuated by malice as shown by the evidence. The trial court should have set aside the findings of the jury that were unsupported by evidence. Plaintiff's motion for a directed verdict should have been denied. Defendant's motion for judgment notwithstanding the verdict, should have been sustained.

For the defendant in error there was a brief and oral arguments by E. E. Enterline and W. B. Cobb, both of Casper, Wyoming.

The oral opinion of a trial judge is no part of the record, and should be stricken. Stevens, et al. v. Laub, 38 Wyo 182; Sewell v. McGovern, 29 Wyo. 62. The definition and proof of embezzlement is covered by statute. 7134 C. S. 1920. Underhill's Cr. Ev. (3rd) 451. Conflict of evidence and credibility of witnesses are for the jury. The rule applies, of course, to malicious prosecution suits. 38 C. J. 505; Rainsford v. Massengale, 5 Wyo. 1; Henderson v. Coleman, et al., 19 Wyo. 183; Boyer v. Bugher, 19 Wyo. 463; Murphy v. Livestock Co., 26 Wyo. 455; Stahley Land Co. v. Beckstead, 27 Wyo. 173; McFadden v. French, et al., 29 Wyo. 401; Montgomery v. Empey, 36 Wyo. 37; Baylies v. Vanden Boom, 40 Wyo. 411; Rue, et al. v. Merrill, 42 Wyo. 511; McGarr, et al. v. Schnoor Cigar Co., et al., (Kan.) 266 P. 73; Yellowstone Sheep Co. v. Diamond Dot Sheep Co., (Wyo.) 297 P. 1107; Michalsky v. Centennial Brewing Co., 48 Mont. 1, 134 P. 307; Zimmerman v. Pennsylvania R. R. Co., (Pa.) 153 A. 721. Where there is substantial evidence to support the verdict, an appellate court will not interfere. Hilliard Flume Co. v. Woods, 1 Wyo. 400; Fein v. Tonn, 2 Wyo. 113; Boburg v. Prahl, et al., 3 Wyo. 325; Marshall v. Rugg, 6 Wyo. 270; Starke v. State, 17 Wyo. 55; Worland v. Davis, 31 Wyo. 108; Huber v. State Bank, 32 Wyo. 357; Carter Oil Co. v. Gibson, 34 Wyo. 53; McMahon v. Midwest Ref. Co., 36 Wyo. 90; Sims v. Southern Surety Co., 38 Wyo. 165; Fletcher v. Pump Creek Gas & Oil Synd., et al., 38 Wyo. 329; Boyle v. Mountford, 39 Wyo. 141; Mulhern, et al. v. Mahs, 41 Wyo. 214; Kahn v. Traders Ins. Co., 4 Wyo. 419; Ross v. Clarke, (Ariz.) 274 P. 639. Probable cause means reasonable grounds to warrant a cautious man in believing accused guilty of the offense charged. 26 Cyc. 24; 38 C. J. 403; Puutio v. Roman, (Mont.) 245 P. 523; Cornner v. Hamilton, 62 Mont. 239; American Ry. Express Co. v. McDermott, 44 F.2d 955; Robinson v. McKnight, (Cal.) 284 P. 1056. Good faith and honest belief of prosecution in defendant's guilt is an element to be considered on probable cause and want of probable cause. 38 C. J. 506; Straka v. Voyles, (Utah) 252 P. 57, 18 R. C. L. 32; Kolka v. Jones, 9 N.D. 461; Franzen v. Schenck, (Cal.) 221 P. 932; McIntosh v. Wales, 21 Wyo. 397. Advice of counsel is no defense in the present case, it being shown that defendant failed to make a full disclosure. 38 C. J. 432, 508; Merchant v. Pielke, (N. D.) 84 N.W. 574; Scrivani v. Dundero, (Cal.) 60 P. 463; Foster v. C. B. & Q. R. R. Co., (Mo.) 14 S.W. (2nd) 561; St. Louis-San Francisco Ry. Co. v. Butler, (Okl.) 264 P. 138; McGarr, et al. v. Schnoor Cigar Co., et al., (Kan.) 266 P. 73; Cornner v. Hamilton, supra; Nelson v. Peterman, et al., (Okl.) 249 P. 333 at 335; Scrambling Co. v. Tennant Drug Co., (Ohio.) 158 N.E. 282; Struby-Estabrook Merc. Co. v. Keyes, (Colo.) 48 P. 663; Marshall v. Brown, (Ore.) 218 P. 923. In malicious prosecution malice may be proven, or inferred. Johnson v. Horn, (Mont.) 283 P. 427; Foster v. C. B. & Q. R. R. Co., (Mo.) 14 S.W. (2nd) 561; Eggett v. Allen, (Wis.) 96 N.W. 803; Irons v. American Ry. Express Co., (Mo.) 300 S.W. 283; Blakely v. Roanoke State Bank, (Kan.) 253 P. 544; Boyer v. Bugher, supra; Merchant v. Pielke, 84 N.W. 574. The court properly overruled defendant's motion for a directed verdict, and for judgment notwithstanding the verdict. Boyer v. Bugher, supra; Collins v. Anderson, 37 Wyo. 275; Hester v. Coliseum Motor Co., 41 Wyo. 345; Texas & P. Ry. Co. v. Cox, 145 U.S. 593, 12 S.Ct. 905; Gardner v. Michigan Cen. Ry. Co., 150 U.S. 349, 14 S.Ct. R. 140 at 144; McCabe v. Montana Cen. Ry. Co., (Mont.) 76 P. 701; Woolen v. Sloane, (Wash.) 162 P. 985; Worthy, et al. v. Artic Co., (Wash.) 195 P. 222; Boyd v. Great Northern Ry. Co., (Mont.) 296 P. 293; Pyles v. Armstrong, (Mont.) 275 P. 753. Newspaper publications are...

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