Laster v. Bragg

• Decision Date: 17 February 1913
• Citation: 153 S.W. 1116,107 Ark. 74
• Parties: LASTER v. BRAGG
• Court: Arkansas Supreme Court

153 S.W. 1116

107 Ark. 74

LASTER v. BRAGG

Supreme Court of Arkansas

February 17, 1913

Appeal from Lonoke Circuit Court; Eugene Lankford, Judge; reversed as to J. H. Laster, affirmed as to Charles Laster.

STATEMENT BY THE COURT.

D. F Bragg filed a complaint in the Lonoke Circuit Court against J. H. Laster and Chas. Laster in three counts. The first and third counts alleged malicious prosecution and the second slander. The first paragraph of the complaint alleges in substance that on or about the 25th day of October, 1911, the defendants maliciously and without probable cause instituted a prosecution against plaintiff before a justice of the peace, charging him with having stolen cotton belonging to defendants and disposing of the same. The second paragraph of the complaint alleges that the defendants on the 24th day of October, 1911, in the presence of and in conversation with one of his neighbors uttered the following false and malicious words of and concerning the plaintiff: "That he (plaintiff) is the damndest thief in the country, and we are going to make an example of him." The third paragraph of the complaint alleges in substance that on the 15th day of November, 1911, the defendants maliciously and without probable cause instituted a prosecution against plaintiff before a justice of the peace, charging him with having stolen cotton belonging to defendants and disposing of the same.

The defendants answered, denying all the material allegations of the complaint.

The plaintiff and his witnesses testified to a state of facts substantially as follows: During the year 1910 the plaintiff D. F. Bragg, rented land from the defendant, J. H. Laster. During the year 1911 he also rented land from said defendant. He planted and cultivated about nine acres in cotton and three acres in corn. He agreed with Laster to pay him as rent one-third of the corn and one-fourth of the cotton. He raised about four bales of cotton. About the 5th day of October 1911, Laster asked Bragg when he could bring in some cotton and Bragg replied that he would haul a bale of cotton to Laster's gin within a few days. A few days thereafter Bragg started with a load of seed cotton to Laster's gin. On his way to the gin he met a neighbor who told him that Laster's gin was not running that day. Bragg then climbed upon the levee and saw no smoke coming out of the smoke-stack of the gin and concluded that Laster's gin was not running. He then carried his load of cotton to another gin and sold it in the seed. He carried the money and ticket showing the weight and price of the cotton home with him. On the 23d day of October, 1911, he carried another bale of cotton to England to another gin and sold it in the seed. He also brought the money for this cotton home with him and a ticket showing the weight and price of the cotton. On the 25th day of October, 1911, an information was filed by the deputy prosecuting attorney before a justice of the peace in Little Rock, Arkansas, charging Bragg with the crime of larceny, alleged to have been committed by stealing an amount of cotton valued at $ 50.00, the property of J. H. Laster. This information was also signed by J. H. Laster and sworn to by him. The warrant of arrest was issued by the justice of the peace and Bragg was arrested and brought before the justice for examination. The deputy prosecuting attorney appeared to prosecute the case, but Laster failed to appear. After waiting about three hours for Laster the deputy prosecuting attorney began the examination of the witnesses and at the conclusion of the examination Bragg, with the consent of the deputy prosecuting attorney, was discharged by the justice of the peace. The constable who arrested Bragg said that he notified Laster of the fact and of the time of the trial. Bragg kept the money which he got for the cotton until after he was discharged by the justice of the peace in Little Rock. A few days thereafter he offered the money to Laster and Laster refused to take it, saying that he could not steal his cotton and settle it in that way. Bragg kept the money which he got from the sale of the first bale of cotton for about fifteen days before the affidavit for warrant of arrest was filed before the justice of the peace. He says that the reason he kept it was because he did not have occasion to see Laster and thought it all right to keep the money until it was convenient to see him. He said he had rented land from Laster the year before and had sold a bale of cotton and then paid Laster his part of it.

On the 12th day of November, 1911, J. H. Laster filed another affidavit for warrant of arrest before another justice of the peace in Pulaski County. In this affidavit it was charged that Bragg removed and sold a certain amount of cotton, the value of which exceeded ten dollars, with the intent to defraud a landlord in his lien for rent. A warrant of arrest was issued and Bragg was arrested and brought before the justice of the peace, where after examination he was bound over to await the action of the grand jury. The transcript of the justice of the peace shows that the affidavit first charged Bragg with the larceny of the cotton and was then changed to the crime of selling and removing cotton with intent to defeat the landlord's lien on the same. The grand jury failed to indict Bragg and he was discharged.

Another witness for the plaintiff, Schwartz, testified that he had a conversation with the defendant Chas. Laster about Bragg selling the cotton and in the course of the conversation he asked Laster if he had ever said anything about it and Laster replied, "No, and that he was a damn thief and that he would lose the rent to get to prosecute him." Chas Laster was the son of the defendant J. H. Laster.

J. H. Laster, one of the defendants, testified:

I was the prosecuting witness in the case against Dennis Bragg. I instituted the prosecution for this reason: I was expecting him with some cotton. I had talked with him a few days before when he passed there, about the 5th of October, and I asked him when he was going to bring up some cotton, and he said he would bring some up in a day or two to pay the rent. It was the contract that he was to deliver the cotton at the gin.

About the last of October, I heard that he had hauled the cotton and sold it at England. I went to see Mr. Schwartz and asked him if Dennis had sold any cotton there. He said he hadn't. Then he said, "Wait a minute and let me look at my books." And he went and looked over the books and then told me that Bragg had sold him a bale on October 12. Then I sent my son over to England and he found that he had sold another there about October 23. That's the reason I had the warrant issued.

Before I instituted the prosecution against Bragg I consulted Judge F. T. Vaughan and he advised me to see the prosecuting attorney. Mr. Rogers was sick and told me to talk to Mr. Kidder. I laid the facts before Mr. Kidder. I told him that I had rented the land for one-third the corn and one-fourth the cotton and that Bragg had carried two bales off and sold them and had not offered to pay the rent. Then we went before Judge Sanders to file information and he issued a warrant. Mr. Kidder wrote the information and I signed it.

On the day set for the trial I was not there. It was my understanding that I was to be notified of the time of the trial, and I think that Judge Sanders wrote the names of the witnesses on the warrant. I was not summoned by the deputy constable, Frank Allison. I was never notified that the case was set for trial at a certain time, before the case was disposed of. My son was not there. The deputy constable came by where I was working and said he would go and arrest Bragg and take him to town and get the case set for trial and then notify me. I supposed he would do as he said he would.

I first learned from Judge Sanders that the case had been disposed of. He told me this the next morning, I think it was, after the case was tried. I went to the judge's office and asked him how about the case; he said it was dismissed. I asked him how it happened he had dismissed it when I was not there, and he said that there were no witnesses there against the fellow and that the prosecuting attorney recommended the dismissal, and that was the reason it was dismissed. Then I told him I would see Kidder and try to get the straight of it. Then I went to Kidder; he told me about the same thing Sanders had--that there were no witnesses against him. I told him what the constable told me and that I had no earthly chance to be there.

Then I consulted Vaughan & Akers and laid all the facts before them, made a full and honest statement, just as I had to Mr. Kidder. I made that statement to both members of the firm and they advised me to go before a justice of the peace of Eagle township and have Bragg arrested. I have known the firm of Vaughan & Akers for some time, and the senior member for fifty years. He is a man of good reputation as a lawyer. He was a circuit judge for several years. Acting upon my lawyer's advice, I instituted proceedings before Justice Mashburn and Bragg was bound over to the grand jury.

At the time I instituted these proceedings, acting on the advice of my lawyers, I honestly believed that I had good grounds for prosecuting Bragg, and I still believe so. If I hadn't I would not have done it. I have no malice whatever against Bragg.

I did not use the language, "We will spend more money than the cotton is worth to prosecute you" (meaning Bragg). I did not say to him, "You, Bragg, can not continue to steal my cotton as you have been doing." When Bragg came up to settle the rent after he had been arrested before Sanders, I told him I couldn't settle, because the matter was in court and I...