De Lamater v. Little

• Decision Date: 08 July 1919
• Citation: 182 P. 853,32 Idaho 358
• Parties: J. DE LAMATER, Respondent, v. ANDREW LITTLE, Appellant
• Court: Idaho Supreme Court

182 P. 853

32 Idaho 358

J. DE LAMATER, Respondent, v. ANDREW LITTLE, Appellant

Supreme Court of Idaho

July 8, 1919

APPEAL AND ERROR-MISCONDUCT OF COUNSEL-MALICIOUS PROSECUTION-INSTRUCTIONS-PROBABLE CAUSE-SPECIAL VERDICT.

1. Where counsel for respondent in addressing the jury makes a statement calculated to prejudice the cause of appellant which is not borne out by the evidence, and, upon exception being taken thereto, the court instructs the jury to disregard such statement, the ruling being favorable to appellant, the incident presents nothing to this court for review.

2. Any motive which prompts the commencement of a criminal prosecution, other than to bring the accused to justice, is malicious.

3. An instruction defining probable cause to mean the existence of such facts and circumstances as would excite the belief in a reasonably prudent man's mind, acting on the facts or information within the knowledge or reach of the complaining witness at the time, that the person charged was guilty of the crime for which he was prosecuted, is not erroneous.

4. In a case wherein the issues are not complicated, it is not an abuse of discretion for the judge to refuse to submit questions to the jury for the purpose of obtaining a special verdict.

[As to expression of opinion as to guilt of accused as improper argument by prosecuting attorney, see note in Ann.Cas. 1916A 431]

APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed. L. Bryan, Judge.

Action for damages for malicious prosecution. Judgment for plaintiff. Affirmed.

Judgment and order affirmed. Costs awarded to respondent.

Finely Monroe and Scatterday & Van Duyn, for Appellant.

Improper and prejudicial remarks made by counsel for plaintiff undoubtedly had their effect on the jury. An instruction by the court would not have eradicated it. (McLean v Hayden Creek Mining etc. Co., 25 Idaho 416, 429, 138 P. 331; Goldstone v. Rustemeyer, 21 Idaho 703, 707, 123 P. 635; Petajaniemi v. Washington Water Power Co., 22 Idaho 20, 28, 124 P. 783; Powers v. Boise City, 22 Idaho 286, 292, 125 P. 194; State v. Givens, 28 Idaho 253, 267, 152 P. 1054, 1057; Cleveland Paper Co. v. Banks, 15 Neb. 20, 48 Am. Rep. 334, 338, 16 N.W. 833; Hatch v. State, 8 Tex. App. 416, 34 Am. Rep. 751; McDonald v. People, 126 Ill. 150, 9 Am. St. 547, 558, 18 N.E. 817; Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582; Tucker v. Henniker, 41 N.H. 317, 325; School Town of Rochester v. Shaw, 100 Ind. 268; 38 Cyc. 1494 (14); Smith v. Western Union Telegraph Co., 55 Mo.App. 626.)

The court erred in refusing to submit to the jury for special finding defendant's questions Nos. 1 and 2. It was the duty of the court to find, as a matter of law, whether or not probable cause existed, and for the jury to find, as a matter of fact, the truth of the defendant's statements as disclosed to his attorney, or other facts constituting probable cause. (Hightower v. Union Savings & Trust Co., 88 Wash. 179, Ann. Cas. 1918A, 489, 152 P. 1015; Simmons v. Gardner, 46 Wash. 282, 89 P. 887, L. R. A. 1915D, 16; Dunnington v. Loeser, 48 Okla. 636, 149 P. 1161, 150 P. 874; Burke v. McDonald, 2 Idaho 679, 33 P. 49.)

A. C. Hindman and Geo. F. Zimmerman, for Respondent.

The remark made by counsel in no way influenced the jury in arriving at its verdict. The instruction of the court to the jury to disregard the remark cured any possible error committed by counsel in making it. (Theriault v. California Ins. Co., 27 Idaho 476, Ann. Cas. 1917D, 818, 149 P. 719; Petajaniemi v. Washington Water Power Co., 22 Idaho 20, 124 P. 783.)

"The prosecution of a person criminally with any other motive than that of bringing a guilty party to justice is malicious." (26 Cyc. 49; Krug v. Ward, 77 Ill. 603; Kendrick v. Cypert, 10 Humph. (Tenn.) 291; Gabel v. Weisensee, 49 Tex. 131; Porter v. Martyn (Tex. Civ.), 32 S.W. 731; Vinal v. Core, 18 W.Va. 1; Rosenblatt v. Rosenberg, 1 Neb. (Unof.) 656, 95 N.W. 686.) "In cases of criminal prosecutions, probable cause means reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offense with which he is charged." (26 Cyc. 24; Lacy v. Mitchell, 23 Ind. 67; Indianapolis Traction etc. Co. v. Henby, 178 Ind. 239, 97 N.E. 313.)

"It is the province of the court to determine as to what particular facts the jury shall find specially, and neither party has the right to dictate the terms of such questions, and for refusing to comply with such request no error can be assigned." (Lufkins v. Collins, 2 Idaho 256, 10 P. 300; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Fodey v. Northern P. Ry. Co., 21 Idaho 713, 123 P. 835.)

MORGAN, C. J. Rice, J., concurs. Budge, J., sat at the hearing, but took no part in the opinion.

OPINION

MORGAN, C. J.

This is an appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial, in an action for damages for malicious prosecution.

One of the points relied on by appellant is disclosed by the following extract from the record relative to an incident which occurred during the argument of counsel for respondent to the jury:

"By Mr. Van Duyn: We hereby except to the statement made by Mr. Zimmerman in his argument that it is common knowledge that Mr. Little has been trampling over the rights of others, for the reason that there is no evidence of such in the case.

"By the Court: The jury will be instructed to disregard the statement of counsel for the reason that there is no evidence in the record upon which such argument could be based."

The ruling was favorable to appellant and the incident presents nothing to this court for review. (Palcher v. Oregon Short Line R. R. Co., 31 Idaho 93, 169 P. 298; Labonte v. Davidson, 31 Idaho 644, 175 P. 588.)

The defense was that appellant, in causing the prosecution, acted upon the advice of counsel, without malice and with reasonable and probable cause to believe respondent guilty of the crime charged.

Appellant complains of a statement in one of the instructions to the effect that any motive which prompts the commencement of a criminal prosecution, other than to bring the accused to justice, is malicious; also to a portion of another instruction to the effect that if it be shown the advice of counsel was not sought in good faith and for the protection of the public, it is not a defense. The language complained of is a correct statement of the law. (18 R. C. L., p. 28, sec. 16; 26 Cyc. 49.)

The action of the judge in instructing the jury that "by the term 'probable cause' is meant the existence of such facts and circumstances as would excite the belief in a reasonably prudent man's mind, acting on the facts or information within the knowledge or reach of the complaining witness at the time, that the person charged was guilty of the crime for which he was prosecuted," is assigned as error, fault being found with the portion of the instruction which refers to facts or information within the reach of the complaining witness. In this connection it is argued that it is not necessary for a prosecuting witness, who relies upon the advice of counsel as a...