Lindsay v. Bates

• Decision Date: 23 November 1909
• Citation: 223 Mo. 294,122 S.W. 682
• Parties: LINDSAY v. BATES.
• Court: Missouri Supreme Court

122 S.W. 682

223 Mo. 294

LINDSAY v. BATES.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

1. MALICIOUS PROSECUTION (§ 19) — CRIMINAL PROSECUTION — PROBABLE CAUSE.

In an action for malicious prosecution of plaintiff for arson, the issue is not whether plaintiff was guilty of the charge, but whether defendant had probable cause for commencing the prosecution.

2. MALICIOUS PROSECUTION (§ 72) — INSTRUCTIONS.

In an action for malicious prosecution, the court instructed that, before the jury can find that defendant was justified, they must find that he had probable cause to believe that the charge made was true, and that by "probable cause" is meant reasonable grounds for believing plaintiff guilty, supported by facts and circumstances sufficiently strong to warrant a prudent or cautious man in believing that plaintiff was guilty, otherwise they must find that the prosecution was without probable cause, and that the information that would justify a criminal complaint must be such that men generally of ordinary care and discretion would have been warranted in acting upon, under similar circumstances. Held, that the instructions were not conflicting as to the information which would justify defendant in making the charge against plaintiff.

3. MALICIOUS PROSECUTION (§ 56) — BURDEN OF PROOF.

In an action for malicious prosecution, the burden is on plaintiff to establish his case.

4. MALICIOUS PROSECUTION (§ 71) — EVIDENCE — QUESTION FOR JURY.

Evidence, in an action for malicious prosecution, held sufficient to make the question of whether defendant had reasonable ground for believing that plaintiff committed the offense, for which defendant instituted the prosecution against him, one for the jury.

5. MALICIOUS PROSECUTION (§ 64) — SUFFICIENCY OF EVIDENCE.

Evidence, in an action for malicious prosecution, held sufficient to sustain a verdict for defendant.

6. MALICIOUS PROSECUTION (§ 58) — ISSUES — ADMISSIBILITY OF EVIDENCE.

In an action for malicious prosecution for arson, instituted by defendant, evidence that defendant offered a specified sum if the building in question should be destroyed is irrelevant to the issue on trial.

7. EVIDENCE (§ 317) — HEARSAY.

In an action for malicious prosecution for arson, evidence that a person, while intoxicated, told a witness that he had burned the building in question, was inadmissible as hearsay.

8. APPEAL AND ERROR (§ 1048) — HARMLESS ERROR — IMPEACHMENT OF WITNESS.

The impeachment of a witness whose deposition has been excluded is harmless.

9. WITNESSES (§ 343) — IMPEACHMENT — EVIDENCE.

The reputation of a witness who has lived nearly all his life in a certain place, until about three years before the trial of the action in question, and who had not established a residence elsewhere, can be impeached by evidence of his reputation in such place.

10. MALICIOUS PROSECUTION (§ 59) — ADMISSIBILITY OF EVIDENCE.

Evidence, in an action for malicious prosecution for arson, that a witness told defendant he had seen plaintiff and B. talking together on the evening of the fire, and had seen B. give M. some money the evening the fire occurred, telling the latter to give the money to another person named, and such person would know what to do with it, was admissible as bearing on the question whether defendant believed plaintiff was guilty and whether he had reason to so believe.

Appeal from Circuit Court, Wayne County; Jos. J. Williams, Judge.

Action by Joseph F. Lindsay against Samuel A. Bates. Judgment for defendant, and plaintiff appeals. Affirmed.

The amended petition, on which the case was tried, alleged that the defendant on the 13th day of October, 1904, appeared before the clerk of the circuit court of said county and maliciously and without probable cause charged the plaintiff with the commission of the crime of arson, by filing an affidavit charging him with the felonious burning of a certain frame building situated on lot 7 in block 12 in the city of Piedmont. It is further alleged that the information was thereupon filed by the prosecuting attorney, based on said affidavit, and a warrant issued thereon by the clerk, and plaintiff arrested thereunder, and gave his bond to appear before the circuit court of said county for trial. It is then alleged that at the February term, 1905, the prosecuting attorney dismissed said prosecution against plaintiff, being advised that the charge contained in the information was without foundation. It was alleged, further, that plaintiff had incurred expenses to the amount of $200 in making his defense to the said charge, and he prayed judgment for $5,000 actual damages, and $5,000 punitive damages. At the return term, the defendant filed his answer, which was a general denial, and also an allegation that plaintiff's general reputation for honesty and morality in the community in which he lived was bad. There was a trial by jury, and a verdict and judgment for the defendant, from which the plaintiff prosecutes an appeal to this court.

It appears from the evidence that the plaintiff lived at Piedmont in 1903, and had lived there for about 20 years; that he was an attorney at law and president of a bank in the said town. The building which was destroyed in said town was a frame building belonging to the defendant, Bates, and was occupied at the time it was burned, October 19, 1901, by one John Berryman. Some time after the house was burned, the defendant, Dr. Bates, John Berryman, and Ed Daniels were indicted for burning it; but this indictment was subsequently quashed and these parties discharged. Afterwards, on the 13th of October, 1904, the defendant made the affidavit referred to in the plaintiff's petition, charging the plaintiff with having burned the said house. The testimony was substantially as follows:

McGhee, the deputy clerk, identified the affidavit filed by the defendant on which the warrant was issued, and also stated that the defendant said that he had a good case against the plaintiff, and if he did not convict him he would leave the state.

R. H. Davis testified that he was prosecuting attorney at the time the information for arson was filed, and that he filed the same at the request of the defendant. He stated that he advised the defendant to let the matter alone; but defendant said that the statute of limitation was about to run and he must act immediately. Witness told Bates he did not want to file the information because he did not think he could make a case. The warrant issued for plaintiff's arrest and the bond given by him for bail, together with the judgment discharging him from that charge, were all offered in evidence.

Almon Ing, prosecuting attorney at the time the case was dismissed, testified that he went over the case with the defendant and Mr. Raney, who had been employed to assist in the prosecution, and told Dr. Bates there was not enough testimony to secure a conviction, and for that reason he intended to dismiss it, and did dismiss it, and that Mr. Raney agreed with him. Witness stated: That defendant made the remark that, if the case was dismissed, plaintiff would enter suit for malicious prosecution against defendant; that thereupon the prosecuting attorney went to the plaintiff and requested him not to do it; that plaintiff seemed to get mad and would not make any such agreement, but said, if defendant would sign a statement that he had lied, he would do it.

Mr. Durham, attorney for plaintiff, stated that it was probable that they would show probable cause. This witness testified that it was his understanding, when they quit talking, that plaintiff did agree not to bring suit.

Caleb Ballard testified: That defendant tried to keep his son, John Ballard, from being present at the trial of the case against plaintiff; that this testimony was denied by the defendant in his evidence, and the testimony of John Ballard shows that he was in Piedmont on the day that the prosecution against plaintiff was dismissed.

The deposition of John Berryman was read in evidence. It was taken in Texas, and he was not cross-examined. The witness testified that he lived in Nacogdoches county, Tex., and had lived there four months. He testified that the defendant told him that, if lightning struck those buildings, he would square the account of witness for $30, another account of $20 that witness stood good for, and give him $50 besides. He testified, further, that he told Ed Daniels that Dr. Bates, the defendant, would pay a man to burn the building, and that afterwards Daniels told witness that he had burned the building. Daniels was dead at the time of this trial. There is no other evidence that Daniels burned the building, and none whatever that defendant ever paid anything to any one in connection with the burning of the building, or that he was ever requested to pay anything to any one for doing so. This evidence was afterwards excluded by the court, and the jury was directed not to consider it. Berryman also testified that he owed respondent about $30, and prior to the burning of the house the defendant pressed him for the payment of it. The witness was charged jointly with the plaintiff with the arson of the building.

Joseph Lindsay, the plaintiff, testified: That he had nothing whatever to do with the burning of the house; that he was in bed asleep when the alarm was sounded; that he never had any conversation with Daniels or Berryman in reference to burning the house. He testified to his arrest in consequence of the complaint against him by defendant, to his payment of attorneys to defend the case, to his objection to having the case dismissed, and that he made no agreement with the defendant or any one else in regard to the dismissal of the case, and said he would not consent to a disdismissal except upon the defendant making a written retraction of what he had sworn to in the affidavit, and that he had nothing whatever to do with the prosecution of the defendant on charge...