McNulty v. Walker

• Decision Date: 17 January 1887
• Citation: 1 So. 55,64 Miss. 198
• Court: Mississippi Supreme Court
• Parties: FRANK MCNULTY v. C. K. WALKER

1 So. 55

64 Miss. 198

FRANK MCNULTY v. C. K. WALKER

Supreme Court of Mississippi

January 17, 1887

APPEAL from the Circuit Court of Clay County, HON. W. M. ROGERS Judge.

Frank McNulty made an affidavit against C. K. Walker and one Brassfield, charging them with stealing his hog. They were arrested and tried and Walker was discharged. Thereupon he brought this action against McNulty for malicious prosecution.

The evidence shows that McNulty had both tame and wild hogs; that he had lost several of these hogs; that he had authorized one J. B. Walker and Brassfield to kill his wild hogs on shares that on or about April 11, 1883, he was informed by one Vail that C. K. Walker and Brassfield were killing his hogs without making a division, as he, Vail, was informed by the McGees; that McNulty, in company with several others, went to see the McGees, who said to them that about February 20 1883, C. K. Walker came to see them and said to them, "I have some wild hogs up in my brother's pen in the bottom and I want you to help spay them;" and after dinner they went to the hog-pen; that after they got there Brassfield came riding up with gear on his mule, and they, McGees, asked what it meant; that Walker called to Brassfield and asked him if he had seen McNulty, and Brassfield answered that he had that McNulty described the hog to a "t," and said it was his and that Walker and Brassfield could have it; that thereupon the McGees assisted Brassfield and Walker to kill the hog, which belonged to McNulty; that Brassfield carried it off, Walker following in the same direction.

McNulty and Vail next went to see Brassfield, and they asked him if he had seen any of McNulty's hogs, and he said he had not, and he further said that he and C. K. Walker had not been in the bottom at all.

Thereupon McNulty went before a justice and made the affidavit above referred to.

The defendant, McNulty, asked the court to instruct the jury peremptorily to find for him. The court refused to do this. The jury found for the plaintiff, and assessed his damages at one dollar, and the court taxed the costs on the defendant. The defendant appealed.

Judgment reversed and cause remanded.

Barry & Beckett, for the appellant.

The law is that when the facts on which defendant acted in making the prosecution are not disputed, that it is a question of law for the court whether they constitute probable cause and ought not to be submitted to the jury. Whitfield v. Westbrook, 40 Min. 316, 317.

We venture the assertion that not only do the facts detailed in this case consti...