Madden v. Covington

• Citation: 86 S.W.2d 190
• Decision Date: 07 October 1935
• Docket Number: No. 5568.,5568.
• Parties: MADDEN v. COVINGTON.
• Court: Court of Appeal of Missouri (US)

86 S.W.2d 190

MADDEN v. COVINGTON.

No. 5568.

Springfield Court of Appeals. Missouri.

October 7, 1935.

Appeal from Circuit Court, Stoddard County; J. V. Billings, Judge.

"Not to be published in State Reports."

Action by Ernest Madden against John H. Covington. From a judgment sustaining plaintiff's motion for a new trial, defendant appeals.

Reversed and remanded, with directions.

C. A. Powell, of Dexter, for appellant.

R. Kip Briney and J. W. Farris, both of Bloomfield, for respondent.

BAILEY, Judge.

This is a suit for malicious prosecution. The action is based upon the issuance and serving of a search warrant upon the affidavit of defendant, by reason of which plaintiff's premises were searched and plaintiff placed under arrest for the crime of grand larceny and incarcerated in the Stoddard county jail from the 14th of March, 1934, until the 21st day of March, 1934. It is alleged that the prosecution was malicious and without probable cause; that the plaintiff was not guilty and was discharged of said offense before a justice of the peace at his preliminary hearing on the 26th of March, 1934. The answer was a general denial. At the trial, before a jury, and at the close of all the evidence defendant offered several instructions in the nature of demurrers to the evidence, all of which were overruled. The jury, however, returned a verdict for defendant. Plaintiff filed a motion for new trial which was by the trial court sustained on three specific grounds, i. e., (1) the court erred in admitting incompetent and prejudicial testimony; (2) the court erred in giving instruction No. 7-P as modified by the court; (3) the verdict was against the weight of the evidence. From the order sustaining the motion for new trial, defendant has appealed.

The first assignment of error is to the effect that the trial court erred in granting a new trial on the ground that the verdict was against the weight of the evidence for the reason that there was no substantial evidence in the case which would sustain a verdict for plaintiff and that defendant was entitled to a directed verdict. This necessitates a review of the evidence. We have read this record carefully and find defendant has made a fair and concise statement of the evidence from which we quote, as follows:

"John H. Covington, his mother and sister in March 1934 lived on a farm three miles south of Bloomfield in Stoddard County. John Lemons, a tenant of Covington's, and his wife and mother-in-law (Mrs. Brazier) lived across the road and about 125 yards from Covington's home. Ernest Madden, the plaintiff, lived about seventeen miles southeast of Dexter.

"On the morning of March 5, 1934, Covington, his mother and sister went to Illinois to visit relatives. They left their house closed, but with the doors unlocked. On their return the next afternoon they found one door open, but did not miss anything until about one week later, when Covington discovered that a ham, a suit of clothes, a gun and other articles had been stolen during the time he was in Illinois.

"Ernest Madden, the plaintiff, had some turkey hens and wanted to buy a gobbler. A neighbor, Rufus Sinkhorn let Madden have $2.00 with which to purchase a gobbler and in return Sinkhorn was to get a part of the young turkeys to be later hatched. On March 5, 1934, Madden took the $2.00 and went to Covington's to buy a gobbler. He rode to Dexter with certain parties, and then rode to Covington's with one Bus Davenport, who was delivering some coal oil to a place north of Covington's. Shortly before Madden arrived one Luther Snyder, his wife and sister also drove to Covington's to purchase turkeys. Snyder learned from Mrs. Brazier, (the mother of Covington's tenant) whom he knew, that Covingtons were not at home, but she told him that the tenant, John Lemons, was at one of the barns near Covington's house. Snyder gave this information to Madden and the two of them hunted for Lemons but did not find him. Snyder then drove away leaving Madden at Covington's. Madden then walked around Covington's house and went to the barns hunting for Lemons but again failed to find him. Madden testified that he then walked south toward Dexter, and after walking about one mile was again picked up by Davenport, who had in the meantime delivered the coal oil. However, Covington testified that Madden later told him he walked north when he left Covington's house, and Covington also testified that before Madden was arrested Mrs. Brazier told him that Madden walked north and not south, when he left Covington's.

"Upon his return to Dexter Madden went to a gambling house and lost his money gambling. When he next saw Sinkhorn he told Sinkhorn that he had gone to Covington's and found that Mr. Covington was not at home, and that he had deposited the $2.00 with a woman at Covington's on a turkey. Madden testified he told this to Sinkhorn because he did not want Sinkhorn to know that he had lost the $2.00 gambling. There was, in fact, no woman at Covington's when Madden was there.

"A day or so after Covington missed his stolen property, Sinkhorn had to go to Dexter on business and while there on his own initiative went to Covington's home and told Covington that Ernest Madden had told him he had made a $2.00 deposit to a woman at Covington's on March 5th on a gobbler, and that he had come to get the gobbler. Until that time Covington had never heard of Madden and did not know him. Covington immediately sent for Mrs. Brazier who told him she had seen two men, Snyder, whom she knew, and another man who she did not know, at Covington's on March 5; that no one paid any money to her on that day; that she saw no one at Covington's during his absence except these two men; that she saw both of them go back of the house and that after Snyder left she saw the other man again go back of the house, and then walk north from the house. Sinkhorn then said that Madden must have misrepresented things to him, and said he would not get a turkey gobbler that day. He also said that Madden was a `drinking, rough sort of man.'

"Covington and his tenant, John Lemons, then drove to Luther Snyder's, whom Covington knew to be a man of good reputation. Snyder told Covington that Madden was the man at Covington's house when he (Snyder) was there; that they hunted for Lemons but did not find him; and then he (Snyder) left leaving Madden at Covington's. He also told Covington that Madden had a `bad name.'

"Covington then went to the Sheriff's office and told him all he knew. (He had previously reported the burglary and larceny to the Sheriff). The Sheriff advised Covington to see the Prosecuting Attorney. Covington then went to the Prosecuting Attorney's office and told him all he knew about the burglary and larceny. The Prosecuting Attorney already had knowledge and information concerning Madden, and the Prosecuting Attorney believed that Madden was the one guilty of the burglary and larceny, and he so expressed himself to Covington. He advised Covington to sign an application for a search warrant, Covington did not ask that a search warrant be issued or that a search be made or that the defendant be arrested or prosecuted. The Prosecuting Attorney then prepared an application for a search warrant. Covington at the time believed that Madden was guilty, and relied upon the advice of the Prosecuting Attorney and executed the application for search warrant. The Prosecuting Attorney at the same time of his own volition prepared and signed an affidavit for state warrant, charging Madden with the burglary and...