Johnson v. Miller

• Decision Date: 25 April 1884
• Parties: JOHNSON v. MILLER ET AL
• Court: Iowa Supreme Court

17 N.W. 34

63 Iowa 529

JOHNSON v. MILLER ET AL

Supreme Court of Iowa, Dubuque

April 25, 1884

Appeal from Black Hawk District Court.

ACTION FOR MALICIOUS PROSECUTION. It is stated in the petition that the defendants caused the plaintiff to be indicted for the crime of grand larceny, and that, in so doing, they acted maliciously and without probable cause, and that they conspired together for the purpose aforesaid, and that said plaintiff has been acquitted of said charge. The defendants pleaded a general denial. Trial by jury, judgment for the plaintiff, and defendants appeal.

REVERSED.

Horace Boies and Hubbard, Clark & Deacon, for appellants.

C. E Wheeler and Piatt & Carr, for appellee.

OPINION

SEEVERS, J.

I.

The burden was on the plaintiff to establish the conspiracy charged, and that the criminal proceeding was commenced without probable cause. The plaintiff offered evidence showing that his barn and contents were burned shortly after he was acquitted of the criminal charge. This evidence was objected to as immaterial, but the objection was overruled and the evidence admitted. There were two indictments against the plaintiff. The first one was quashed, and it was generally known that a motion to quash would be made. A few days prior to the convening of court, there was found, early in the morning, near the plaintiff's residence, a letter addressed to him, with which was a rope. The contents of the letter, as testified to by the plaintiff, were as follows "In view of the present indictment we understand that you are under, we understand that you calculate to have the indictment set aside. We advise you to appear and be tried under the indictment with the defect, if any exists, or take the lamented Greeley's advice and go west, or take this. "WE THE COMMITTEE."

The plaintiff offered evidence of the finding and contents of the letter. To this the defendants objected on the ground of incompetency, and because it was not shown that any of the defendants were connected with the letter. The objections were overruled.

We have examined the large abstract with care, and have failed to find any evidence tending to show that the barn was not accidentally burned, or, if not, that any of the defendants had connection therewith, or are in any respect responsible therefor. We have also been unable to find any evidence tending to show that the letter was written by the defendants, or any of them, or that they ever had knowledge of its existence. This being so, we think the foregoing evidence should have been excluded, and we can readily see and understand that the defendants were greatly prejudiced by its introduction.

The defendants were members of an "anti-horse-thief association," and it is claimed that the association directed or caused the criminal proceedings to be commenced against the plaintiff, and that the defendants advised and directly sanctioned what the association did by, among other things, contributing money to aid the prosecution. Conceding this to be so, there is no evidence tending to show that the association had anything to do with burning the barn or writing the letter. The defendants asked the court to instruct the jury to disregard the foregoing evidence. This was refused, and the jury were instructed that they should disregard it, "unless you find there is testimony which connects (the defendants) in some way with such acts. Mere suspicion or supposition is not sufficient." It is insisted by counsel for the appellees that the error in the admission of the evidence aforesaid was cured by the instruction given the jury. But it is error to give an instruction where there is no evidence to support it. This has been repeatedly ruled, and we do not understand counsel to claim otherwise.

Benjamin Yost testified that at the term the indictment was found one of the defendants (but which one he was unable to state) said "that, if they could not get rid of him (plaintiff) no other way, they would burn him out." It is said that this evidence warranted the court in giving the instruction above stated. The evidence is indefinite and uncertain, and we think, if the defendants were on trial for burning the barn, the evidence would have been inadmissible against any one of them, because it failed to identify the defendant who spoke the alleged words; and it would not have been admissible as evidence against all of the defendants, unless a conspiracy to burn the barn had been established; and the rule must be the same in this case. There is no evidence tending to show a conspiracy to burn the barn.

John Hines testified that he heard David Fall, one of the defendants, say, at the time at which the indictment was found, "we will convict Johnson sure, or, if we do not convict him, we will drive him out of the country." Who Fall included when he said "we," the witness was unable to state. It is exceedingly doubtful whether what Fall said is binding on any one but himself; but, conceding that the defendants are bound thereby, we do not think that the presumption should be indulged that the plaintiff was to be driven out of the country by the perpetration of two serious criminal acts. It cannot be presumed that Fall intended to accomplish the desired end by unlawful acts. The evidence, therefore, was insufficient to connect the defendants with either the burning or the writing of the letter. The court, therefore, erred in the admission of the evidence, and in instructing the jury as above stated.

II. John Foreman is one of the defendants, and the plaintiff, when on the stand as a witness, testified that this case was twice tried in Benton county, and that said Foreman testified on said trials, or one of them, "that they had met--this organization had met--these defendants and the balance of them--and they had determined to prosecute, whether anybody told them or not;" that is, as we understand, whether or not the district attorney advised the commencement of the criminal proceedings. This evidence was objected to by all of the defendants except Foreman, but the objection was overruled. The evidence was admissible against Foreman as an admission. It stands upon the same footing as an admission out of court. But it was not binding on the defendants, unless the conspiracy had been established or the admission tended to so prove. The admission was made by Foreman long after the criminal proceeding was at an end. The conviction of the plaintiff of the criminal charge was the object of the conspiracy. This had failed, and the conspiracy had ceased to exist when the object intended to be accomplished had failed. Conceding that Foreman and the defendants were conspirators, we understand that the admission of one, to be binding on the others, must be made during the existence of the conspiracy, and in aid of the common design. In 3 Greenleaf Ev., § 94, it is said: "The evidence of what was said and done by the other conspirators must be limited to their acts and declarations made and done while the conspiracy was pending, and in furtherance of the design; what was said or done by them before or afterwards not being within the principle of admissibility." See also The State v. Westfall, 49 Iowa 328. We think the court erred in the admission of the evidence aforesaid.

III. William Hamson, who is not a defendant, was called as a witness for the defendants, and on cross-examination was permitted to testify, against their objections, that he was a member of the association, but became such after the indictment was found, and that he had contributed money as dues to the association during the pending of the indictment. This evidence was not directed in reply to or in explanation of the evidence of the witness in chief, and was inadmissible, because the witness was not charged with conspiracy, and the fact that he was a member of the association, and contributed money in furtherance of the objects of the organization, should not prejudice the defendants. What the witness did bound no one but himself.

IV. G. W. Miller, one of the defendants, was called as a witness by the plaintiff, and testified that he was present at a meeting of the association, and he thereupon was asked, and answered, the following questions: "Do you recollect of a vote being taken in a meeting of that organization to prosecute Mr. Johnson for selling Mr. Foreman's calves?" "Yes, I think I do." "Do you know of money being voted for that purpose and the members assessed to raise the money?" "Yes sir." This evidence was objected to "because the action of the organization is not that of the defendants;" but the objection was overruled.

The association was not incorporated, but it may be said to be recognized by or founded in accordance with a statute. Code § 1091. It cannot, therefore, be regarded as unlawful, unless organized for such a purpose. But, if lawfully organized, its powers may have been used for an unlawful purpose. The association is not a party to this action, but certain members are, and the question is, to what extent are the latter bound by the acts of the association? As it was not incorporated, the association must be regarded as a partnership or association of persons for the accomplishment of a common purpose, which, for the purpose of the argument, must be conceded to be the prosecution of the plaintiff on the criminal charge. Now, if the defendants aided and abetted in the prosecution by the contribution of money for that special purpose, or otherwise, then we think they are responsible for the consequences. If the prosecution was unlawful, they are liable. But the defendants insist that the evidence fails to show that they or any of them contributed money in aid of such prosecution. They say that the evidence only shows that ...