J. v. Farwell

• Decision Date: 10 July 1897
• Docket Number: 9570
• Citation: 58 Kan. 402,49 P. 518
• Parties: J. V. FARWELL v. R. R. LAIRD
• Court: Kansas Supreme Court

49 P. 518

58 Kan. 402

J. V. FARWELL v. R. R. LAIRD

No. 9570

Supreme Court of Kansas

July 10, 1897

Decided January, 1897.

Error from Sedgwick district court. Hon. C. Reed, Judge.

Judgment reversed.

Edwin White Moore, for plaintiff in error.

Valentine Godard & Valentine, for defendant in error.

OPINION

DOSTER, C. J.

This was a suit for malicious prosecution, brought by the defendant in error against the plaintiff in error. Only one question needs to be specially noticed. On the trial of the case the court, over defendant's objections, received in evidence the finding made by the justice of the peace that the complaint of the prosecuting witness against the accused was malicious and without probable cause, and instructed the jury as follows: "Now in this connection, the court instructs the jury that if you find it to be a fact that the said R. R. Laird was arrested as aforesaid, upon a complaint as aforesaid, and was discharged as aforesaid, then, in that event, the court instructs the jury under the evidence in this case that there was no probable cause for such arrest."

This ruling and this instruction were erroneous. In the case of Sweeney v. Perney, 40 Kan. 102, 19 P. 328, it was held:

"On the trial of an action for malicious prosecution, it is not error for the trial court to refuse to permit to be read in evidence that part of the verdict and judgment in the criminal case, for the institution and the prosecution of which this action is brought, that finds and adjudges that the complaint was malicious and without probable cause; and that the name of the prosecuting witness was the name of the defendant in the action for malicious prosecution; and adjudges him to pay the costs."

Counsel for the defendant in error attempts to distinguish the present case from the earlier one, and observes that the earlier case "was a trial before a jury, and not an examination. In that case, before the jury could convict, the guilt of the accused must be proved beyond a reasonable doubt; while in this case all the magistrate had to do was to find, not the guilt of the party, but whether there was probable cause to believe him guilty." True, the original case out of which Sweeney v. Perney grew was a trial for misdemeanor, and not a preliminary examination on a charge of felony; but in that case it was not the verdict of acquittal based upon the rule of "reasonable doubt" which had been offered in evidence. What was offered in that case, as in this, was the accompanying finding of malice and lack of probable cause. The two cases, therefore, in point of fact are identical. There is, as noticed in the case of Sweeney v. Perney, a conflict of authority upon...