Martin v. Corscadden
| Decision Date | 02 July 1906 |
| Citation | 86 P. 33,34 Mont. 308 |
| Parties | MARTIN v. CORSCADDEN. |
| Court | Montana Supreme Court |
Appeal from District Court, Ravalli County; F. C. Webster, Judge.
Action by Elisha B. Martin against George Corscadden. From a judgment for plaintiff, defendant appeals. Affirmed.
Henry L. Myers, for appellant.
Geo. T Baggs, for respondent.
Action for malicious prosecution. The plaintiff had verdict for $550. Judgment was entered in his favor for this amount and costs of suit, taxed at $102.60. The defendant has appealed from the judgment and an order denying him a new trial. He seeks a reversal of the judgment and order on the grounds (1) That the evidence is insufficient to sustain the verdict (2) that errors of law occurred during the trial prejudical to him; (3) that the damages awarded by the jury are excessive, being given under the influence of passion and prejudice; and (4) that the court abused its discretion in refusing a new trial on the ground of newly discovered evidence, which defendant could not with reasonable diligence have discovered or produced at the trial.
1. Appelant is not entitled to have the evidence examined to determine its sufficiency, for the reason that the bill of exceptions does not specify the particulars wherein the alleged insufficiency consists, as required by section 1152 of the Code of Civil Procedure. The rule has been uniformly observed by this court that, when the bill of exceptions or statement does not point out the particulars wherein there is a failure in the evidence to justify the verdict or decision, the appellant may not rely on any alleged insufficiency therein as a ground for a new trial. The bill of exceptions in this case was settled on January 31, 1905. The Legislature of 1905 passed an act, approved March 4, 1905 (Laws 1905, p. 185, c. 92), section 1152, supra, and section 1173 relating to statements on motion for new trial, so as to dispense with the necessity of specifications of particulars of insufficiency of the evidence; but it cannot be held to apply to bills of exceptions or statements settled prior to its enactment. Nevertheless we have examined the evidence with care, and do not think there is merit in appellant's contention. On most points it is conflicting, and, taken as a whole, presents a case upon which the jury was amply justified in finding for the plaintiff. It is not apparent, therefore, that the trial court abused its discretion in refusing a new trial on this ground.
2. The evidence shows that the defendant filed a complaint in one of the justices' courts in Ravalli county charging the plaintiff with the larceny of two hogs; that an examination was had by the justice, at which it was made to appear that there was a controversy between the plaintiff and the defendant as to whether they were tenants in common of the hogs, or whether the plaintiff was merely the lessee of the defendant under a contract to care for the hogs for one-half the increase. The offense charged was grand larceny, and out of the prosecution thus instituted by the defendant, this action grew. The justice was examined as a witness for the plaintiff, and, in connection with his statement, the record of the proceedings before him was introduced. He was requested to read the entries made by him upon his docket. This was done for the purpose of showing that the prosecution had terminated. All of the entries went in without objection. Among other things the docket shows the following: "After hearing the evidence in the above-entitled cause, the defendant found not guilty and discharged; and there seeming to be no grounds for complaint, judgment is hereby entered against George Corscadden, complaining witness, for costs." After this had been read to the jury, counsel for defendant objected to the part following the word "discharged," and moved to strike it out on the ground that it was immaterial. The objection and motion were overruled.
It is argued that this was gross error, in that the judgment of the justice upon the very point at issue, to wit, whether the prosecution was without probable cause and malicious, was thus allowed to go to the jury as a prior adjudication of it. We think the evidence was wholly irrelevant and incompetent, as well as immaterial, whether offered as a prior adjudication of the issue on trial, or as an expression of opinion by the justice thereon. Farwell v. Laird (Kan.) 49 P. 518; Apgar v. Woolston, 43 N. J. Law, 57; Helwig v. Beckner (Ind. Sup.) 46 N.E. 644; Casey v. Sevatson (Minn.) 16 N.W. 407; Fletcher v. Chicago & N.W. Ry. Co. (Mich.) 67 N.W. 330; Bays v. Herring, 51 Iowa, 286, 1 N.W. 558; Anderson v. Keller, 67 Ga. 58; Skidmore v. Bricker, 77 Ill. 164; Israel v. Brooks, 23 Ill. 575. But, even so, the appellant cannot complain. The objection was not made until after the evidence had been admitted. It therefore came too late. Since this is so, the court committed no error in refusing to strike out the evidence. If a party sits by and permits objectionable evidence to go into the record without protest, he may not afterwards be heard to say that he has been prejudiced by the court's refusal to strike it out. Poindexter & Orr L. S. Co. v. Oregon Short Line Ry. Co., 33 Mont. 338, 83 P. 886. If counsel did not know of the contents of the docket, he should have informed himself, and, having failed to do so and object at the proper time, the court was not bound to strike out the objectionable part of it.
During the cross-examination the justice was asked by counsel for defendant whether, when the warrant of arrest was issued and the plaintiff came into court, he had committed him to jail or required him to give bail for his appearance pending a hearing. He said that he had not, but had permitted him to go at large on his own promise to appear. Later, on re-examination, he was asked why he had not required bail. His answer was, in substance, that he did not require it of defendants if he had confidence in the person, and that he had confidence in plaintiff; besides, the plaintiff agreed to appear, and his father, who was with him, guarantied his appearance. This statement was permitted to go to the jury over defendant's objection, and it is argued that it was incompetent as tending to establish a good reputation for the plaintiff in the community by thus indirectly introducing the mere personal opinion of the justice. There was no issue in the evidence touching the reputation of the plaintiff in the community. The plaintiff did not put it in issue, nor was it attacked by the defendant. The matter was allowed to rest upon the presumption indulged by the law in favor of every person that he bears good repute among his neighbors until the contrary appears. The court was apparently of the opinion that, since it appeared that the justice had not followed the course contemplated by law in such cases, it was proper to permit him to explain why. As affecting the merits of the case, we think the reason why the justice indulged the plaintiff as he did was immaterial; but we cannot see that the mere use of the word "confidence" could have the effect upon the minds of the jury which counsel claim it must have had. It amounts to no more than an expression of a personal belief, entertained at the time by the justice, that the plaintiff would appear at the hearing on the day fixed, without reference to any notion he might have had that the plaintiff had theretofore borne a good reputation. Under the circumstances, it was but natural for the inquiry to be made, and the answer was only such as the jury would naturally supply in their own minds, even though it had not been made and the matter called to their attention. It is hardly possible in any case to exclude all immaterial evidence, and when a particular fact is of such small significance as the one in question here, and was probably already inferred by the jury from the statements of the witness called out by the defendant himself, which were admittedly competent and material, it can hardly be said that it prejudiced the defendant.
As tending to show probable cause and absence of malice on the part of the defendant, counsel offered to prove by one Thomas that the plaintiff had confessed to him about two years prior to his arrest, that he had at one time boarded at a restaurant in St. Louis, Missouri, and had made a habit of stealing articles of silverware from the restaurant and giving them to his relatives, all of which had been communicated to the defendant prior to the institution of the prosecution. Upon objection, this was excluded as irrelevant and we think properly so. All the books agree that the plaintiff must prove both want of probable cause and malice, and that, where the absence of the former is established, the presence of the latter may be inferred. In other words, when the proof tends to show the absence of the former, a prima facie case is made for the jury. The burden then rests upon the defendant to rebut this prima facie case; and this he must do by any evidence tending to show the existence of probable cause and the want of malice on his part. Probable cause, however, is not to be confounded with actual guilt. The latter must always be established by proof beyond a reasonable doubt, while "probable cause is only such a state of facts and circumstances as would lead a careful and conscientious man to believe that the plaintiff was guilty." Barron v. Mason, 31 Vt. 189. In the particular case, then, the inquiry must be, not whether the plaintiff was actually guilty, but whether the facts and circumstances were such as to warrant the defendant, as a prudent and conscientious man, to believe him guilty; and while mere reputation or the general report of plaintiff's guilt is not sufficient to...
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