Hickam v. Griffin

• Decision Date: 31 August 1839
• Citation: 6 Mo. 37
• Court: Missouri Supreme Court
• Parties: HICKAM v. GRIFFIN.

6 Mo. 37

HICKAM

v.GRIFFIN.

Supreme Court of Missouri.

August Term, 1839.

HAYDEN & ADAMS, for Appellant. To reverse the judgment the appellant will insist upon the following points and authorities: 1. That the court erred in giving the first instruction asked by plaintiff below. The warrant of the justice of the peace, the return of the constable thereon, and the recognizance for the plaintiff's appearance in the Cole Circuit Court to be read without proof of their execution. See M'Carty v. Sherman, 3 Johns. R. 429; 2 Starkie's Ev. 812; Saunders on Pl. and Ev. 661, side page. 2. The warrant did not run in the name of the State and was therefore void, and the action should have been trespass vi et armis. Fowler v. Watson, 4 Mo. R. 27. 3. That the court erred in not permitting the defendant below to introduce in evidence, the testimony he had given before the magistrate upon the original prosecution. See Hays v. Waller, 2 Mo. R. 222; Buller's N. P. 114. 4. That the court erred in giving the instructions asked by the plaintiff below. See 2 Starkie's Ev. title, Malicious Prosecution; 10 Johns. R. 106, Vanduzor v. Linderman; 2 Starkie, 911, and note 1, et seq; 3 Leigh's R. 566.

TODD & KIRTLEY, for Appellee. Although the act of the magistate in acquitting or sending on for further trial is evidence to show probable cause or not, it is only prima facie. See 2 Murphy, 248; 2 Johns. 203, referred to in 2 Starkie 494, note 1, and it may be rebutted by other evidence that the prosecution was without probable. cause. 4 Mun. 462 in same note of Starkie; and although defendant may prove a felony committed, and may throw suspicion of the accused, yet it is insufficient in case of express proof that the defendant knew the prosecution was without foundation, 2 Starkie, 496. And no evidence of malice can be more cogent then that the defendant knew that the plaintiff was innocent. 5 Taunt. 583; 2 Starkie, 494, note 6.

The reason of defendant for a new trial is not true in fact as the record shows all his instructions were given and the 5th has been answered in the answer to first three points.

NAPTON, J.

Griffin sued Hickam for a malicious prosecution before a justice of the peace. The declaration charged that the defendant (below) appeared before one Glazebrook, a justice of the peace in Cole county, and charged him (Griffin) with petty larceny; and procured said justice to issue his warrant; that he caused said Griffin, by virtue of said warrant, to be arrested, and recognised for appearance at the Cole Circuit Court. The declaration further avers the continued prosecution of plaintiff by defendant before the grand jury, and the refusal of said grand jury to find any indictment. The general issue was pleaded, and the parties went to trial. On the trial, the plaintiff offered in evidence the warrant of the justice, without proving the hand-writing of said justice, which the defendant objected to, but the court permitted the writing to go to the jury. Plaintiff also read the endorsement on the warrant of the return of the constable, without first proving said constable's hand-writing. The plaintiff also proved, that the said constable took plaintiff in custody and carried him before a magistrate. Plaintiff also gave in evidence the recognizance, which said justice caused him to enter into, and the records of the Circuit Court of Cole county, reciting the impanneling of the grand jury, their failure to find any bill against Griffith, and the subsequent discharge of Griffith by the court. To the introduction of all this evidence the defendant below objected--but the objection was overruled. The plaintiff then introduced the justice of the peace, Glazebrook, and proved by him, that the defendant appeared before him, and applied to him for a warrant against Griffin, and that upon his (Hickam's) application, he (Glazebrook) issued the warrant, being the writing first offered. The defendant proposed to prove, upon the cross-examination of said justice, what the defendant swore to before him upon his examination but the court refused to allow the justice to state what the defendant below had sworn to, the plaintiff having previously proved that several other witnesses were present at the time the alleged larceny was said to have been committed.

The plaintiff also proved by said justice (Glazebrook) that he (Glazebrook) caused the plaintiff, Griffin, to enter into a recognizance to appear at the next term of the Cole Circuit Court and both plaintiff and defendant gave evidence conducing to show the existence or want of probable cause and malice.

At the instance of the plaintiff, the court then gave the jury the following instruction. “If the jury believe from the evidence, that the defendant prosecuted the plaintiff upon a charge of larceny, and the plaintiff was acquitted and discharged therefrom, and that, the defendant had no probable cause to believe him guilty of the charge, they will find for the plaintiff.”

The defendant also asked for the following instructions which were given by the court. 1. That to enable the plaintiff to recover in this cause, it is necessary they should be satisfied from the evidence in the cause, that the defendant prosecuted the plaintiff in malice, and without probable cause. 2. That if the defendant had probable cause to institute the prosecution, that then they ought to find a verdict in his favor. 3. That it matters not how malicious the motive of Hickam was in prosecuting the plaintiff, yet if they believe from the evidence that Hickam had probable cause for prosecuting him, they ought to find a verdict for the defendant Hickam. 4. That the fact that the justice of the peace, Glazebrook, upon the inquiry before him, recognised the plaintiff in a recognizance, binding him to appear at the Cole Circuit Court, to answer over to the charge mentioned in the prosecution, is evidence of there being probable cause for the prosecution, and that the jury ought to find for the defendant on such evidence, unless the plaintiff prove by other evidence that the prosecution was instituted without any probable cause. 5. That it is not necessary in this action that the defendant should show that the plaintiff was absolutely guilty, to entitle Hickam to a verdict, but that it is only necessary that they should believe from the evidence that the defendant Hickam had probable cause to prosecute him, Griffin. 6. That it matters not how small the amount of money stolen from the defendant was, the defendant stands justified in the law for prosecuting the plaintiff, if he had probable cause for the prosecution.

The jury found for plaintiff, and defendant moved for a new trial, on the following grounds. 1. The court permitted the plaintiff to give improper testimony. 2. The court refused to permit the defendant to give all and every part of his testimony. 3. The court misdirected the jury. Which motion was overruled by the Court, and to reverse this judgment the plaintiff in error has relied on the following points, which I will examine seriatim.

First. That the court erred in permitting the warrant of the justice, the return of the constable thereon, and the recognizance for Griffiin's appearance, to be read to the jury, without proof of their execution. Second. That the warrant produced did not run in the name of the State of Missouri, and consequently, the action should have been trespass vi et armis. Third. That the court erred, in not permitting Hickam's testimony before the magistrate, to go to the jury. Fourth. That the court erred in giving the instruction asked by the plaintiff.

1. If the papers of the justice had been duly certified by him, and it appeared from the record, that they were on file in the Circuit Court, there could be no question of their admissibility, without further proof. But the papers offered were original papers, and there is nothing preserved in the bill of exceptions to show how they got into the Circuit Court. The papers were not admissible without some proof of their...