King v. Martin

• Court: Virginia Supreme Court
• Writing for the Court: CHICHESTER
• Citation: King v. Martin, 150 Va. 122, 142 S.E. 358 (1928)
• Decision Date: 22 March 1928
• Parties: KING. v. MARTIN.

142 S.E. 358

KING.

v.MARTIN.

Supreme Court of Appeals of Virginia.

March 22, 1928.

Error to Law and Chancery Court of City of Norfolk.

Action by J. J. Martin against Arthur G. King and others. Judgment for plaintiff, and named defendant brings error. Reversed and rendered.

Williams, Loyall & Tunstall, of Norfolk, for plaintiff in error.

S. M. Brandt, of Norfolk, for defendant in error.

CHICHESTER, J. This is a notice of motion for judgment based upon the alleged malicious prosecution of J. J. Martin, hereinafter called plaintiff, by Arthur G. King, hereinafter called defendant or Mr. King. Therewere, originally, four other defendants, Elnora King, mother of Arthur G. King, and A. M. Allen, W. H. Fleet, and L. Nowitsky, the last three being members of the police force of the city of Norfolk.

There was no service of process on Elnora King, and the case was dismissed, during the trial, as to the police officers. The jury returned a verdict against the remaining defendant, Arthur G. King, for $500, with interest from July 26, 1926. The trial court refused to set aside the verdict on motion of the defendant, and entered judgment thereon.

The facts of the case are quite clearly stated in the petition for a writ of error, in substance, as follows: On or about the 26th day of August, 1925, at about 8:30 in the evening, the defendant and his mother were sitting in the living room of his home at. Meadowbrook, one of the suburban sections of the city of Norfolk. They were the only people in the house with the exception of defendant's oldest boy, who was then about four years old. Defendant heard a voice, and looked around and saw a man standing in the doorway. He started to jump up, but the man told him to keep perfectly still or he would shoot him; his mother likewise called to him to keep still. The intruder ordered defendant and his mother to go up stairs and into one of the back rooms, and as they went in the door Mr. King could see very clearly in a mirror that the man had a pistol, which he held against Mr. King's back while he went through his pockets. Leaving Mr. King and his mother for a minute, the man went into the next room and went through the drawers and came back in probably less than a minute and said that he was going to stand outside and shoot defendant if he attempted to follow him. One or two minutes after the front door was closed Mr. King heard a car start, and as soon as Mr. King came down stairs he called the police, subsequently looking out of the door, but finding no car in sight. The robber got all of the jewelry of Mr. King's wife and a small amount of cash he had in his pocket.

Some thirty-five or forty minutes after the robbery several detectives arrived, to whom Mr. King gave as good a description as he could of the robber, but explained that he had not gotten a very good view of his features as most of the time he was in the light and the robber was in the shadow, so that he was not able to distinguish his features very closely, and limited his description very largely to his size and general appearance.

Defendant left the matter entirely in the hands of the police department of the city of Norfolk. Several times he was requested by that department to come to the police station to look at pictures of people whom they had suspected, but none of the pictures appeared to tally with his recollection of the man's appearance. Finally, on the morning of the 18th of September, the police department communicated with Mr. King, stating that they had a man they wanted him to look at and asked him to bring his mother with him. Together they went to the police station, where the notice officers said that they had a man who they were almost certain was the burglar.

The purpose of sending for Mr. and Mrs. King was, of course, to secure an identification. The method pursued was that Martin and some ten or twelve other men were caused to stand up in a line in a room known as the "Bureau of Identification, " and Mr. and Mrs. King were sent separately into the room to see whether they could say which man of those in the line seemed to be the robber. Mr. and Mrs. King went into the room separately, entering from different doors, and had no opportunity of communicating with each other.

There is a general agreement among the witnesses that Mrs. King's identification was quite positive and direct.

The evidence is conflicting as to the positiveness of the identification made by Mr. King.

In point of fact, however, it is not important, in our view, whether Mr. King's identification was positive or not.

After the identification, such as it was, was made at the police station, Mr. and Mrs. King took their leave. They did not request that Martin be arrested or held. On the complaint and information of Officer A. M. Allen, however, a warrant was sworn out for Martin's arrest, which was thereupon executed and Martin was committed to jail. He was subsequently indicted by the grand jury before which defendant was called and testified, and later tried in the corporation court. At the trial Mr. King testified exactly in accordance with the statements which he said he had previously made. Mrs. King's testimony was much less positive than her original identification, and Martin was, on the 21st day of October, 1925 acquitted and discharged: This action, after some correspondence between counsel, followed.

There are two assignments of error:

(1) The court erred in refusing to give the instruction for the defendant set forth in certificate of exception No. 1, upon the grounds set forth in that certificate of exception.

(2) The court erred in refusing to set aside the verdict on the ground that it was contrary to the law and the evidence as set forth in certificate of exception No. 4, for the reasons stated in said certificate.

The defendant's principal defense was that he neither instituted nor caused, nor had anything to do with, the prosecution upon which the action was based. This question is involved in both assignments of error. The second assignment presents the additional defense that the circumstances of the casefall to show a want of probable cause, and negative the existence of malice, but as we are of opinion that the evidence, in spite of the jury's verdict, as a matter of law, fails to show that the defendant instituted or caused or had anything to do with the prosecution except to appear as a witness when summoned, it is only necessary to consider the assignments of error as they relate to this defense.

As stated, there is a conflict in the evidence as to the positiveness with which the defendant identified the plaintiff as the man who...