Hight v. Harding

Citation113 S.W. 47,87 Ark. 515
PartiesHIGHT v. HARDING
Decision Date19 October 1908
CourtSupreme Court of Arkansas

Appeal from Washington Circuit Court; J. S. Maples, Judge; reversed.

E. B Wall, McGill & Lindsey and Mays & McDonald, for appellant.

It is reversible error for a trial judge to permit counsel in argument before the jury to comment upon evidence which has been excluded.

R. J Wilson, McDaniel & Dinsmore, and Walker & Walker, for appellee.

OPINION

HART J.

This is an action of malicious prosecution brought in Washington Circuit Court by W. A. Harding against J. P. Hight.

The complaint alleges, in substance, that the defendant, Hight had falsely, maliciously and without probable cause procured the grand jury of Washington County to find an indictment against the plaintiff, Harding, charging him with the crime of obtaining money under false pretenses, which indictment was returned November 4, 1905. The false pretense charged consisted in selling a cow in his possession to one J. N. Oates for $ 45, which he represented to be his own property, and which in reality was alleged to be the property of the defendant, Hight. That Harding was at the October term, 1906, of said court duly acquitted of said charge by a jury. Whereupon he was by the court discharged, and the prosecution thereby terminated.

The complaint further alleged that Hight had maliciously and without probable cause caused Harding to be imprisoned in the county jail of Washington County on said charge for seventy-two days, and had afterwards caused him to be prosecuted in said circuit court on said charge until his acquittal and discharge. That, prior to the beginning of said seventy-two days' confinement, Harding had given bail for his appearance in said court to answer said charge, but that Hight had gone to one Charles Vance and other sureties on his bail bond and falsely and maliciously represented to them that by remaining on his bond they would be compelled to pay the amount thereof, and would be otherwise injured, and did thereby cause them to surrender Harding into custody, whereby he was imprisoned in the county jail for seventy-two days. That after said imprisonment Hight absented himself from a term of said court and caused Harding to be deprived of his right of a speedy trial, by which he was greatly humiliated.

Hight answered, making a general denial. The case was tried before a jury at the fall term, 1907, of said court. The jury returned a verdict in favor of plaintiff for $ 1,800 damages, and the defendant has appealed.

Harding had been in the dairy business near Fayetteville, Arkansas, and J. A. Ferguson had held his notes for $ 1,850, and a mortgage on the property used in his dairy business to secure the same. Hight bought the notes and mortgage about May, 1905. Harding executed to Hight a new note and mortgage. Shortly afterwards, seven cows, one of which was called "Dandy," were purchased from Hugh Shelton for $ 180 or $ 190, and delivered to Harding. Here is where the conflict of testimony begins.

Harding claims that he bought the cows from Shelton for $ 190, and paid him by giving him ten dollars in money and a check on Hight for the balance. On the other hand, Hight contends that he bought the cows from Shelton, paying him, therefor $ 180, and then sold them to Harding for the same price, retaining the title in the cattle until they were paid for. It is not disputed that the cow called "Dandy" was sold to Oates by Harding for $ 45, and that Harding at the time represented that she was his property, and was free from any lien or other incumbrance. Hight produced a memorandum in writing showing a sale of the Shelton cattle together with others by him to Harding. The memorandum purports to have been signed by Harding, and shows that the title to the cattle was retained by Hight until they were paid for. Harding says this memorandum is a forgery. Other evidence was adduced by each party tending to show his ownership in the cattle, but it consisted chiefly of circumstances from which ownership might be inferred by the jury.

Over the objections of Hight, Harding was permitted to prove that Hight had never assessed these cattle for taxation; the court at the time stating in the presence of the jury that he would permit the assessment list of Hight to go to the jury for...

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