Owens v. Owens

• Decision Date: 19 June 1895
• Citation: 32 A. 247,81 Md. 518
• Parties: OWENS v. OWENS.
• Court: Maryland Court of Appeals

32 A. 247

81 Md. 518

OWENS v. OWENS.

Court of Appeals of Maryland

June 19, 1895

Appeal from circuit court, Anne Arundel county.

Action by Edward R. Owens against William F. Owens for malicious prosecution. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Argued before ROBINSON, C.J., and BRYAN, McSHERRY, FOWLER, PAGE, and BOYD, JJ.

Frank H. Stockett and James M. Munroe, for appellant.

D. R Magruder and John R. Magruder, for appellee.

BOYD J.

This was an action for malicious prosecution brought by the appellee against the appellant. At the conclusion of the plaintiff's testimony, the defendant asked the court to instruct the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover. The rulings of the court in rejecting that prayer, and in excluding some evidence to be hereinafter referred to are before this court for review. It is contended on the part of the appellee that the prayer is too general, and was properly rejected by the court below on that ground. It certainly did not direct the court's attention to the particular point or points in which the evidence, in the opinion of the defendant, failed. It is a practice not to be approved of but, without stopping to discuss the form of the prayer, we think no sufficient reason has been given to justify us in saying that the evidence is so lacking in any material point necessary to sustain the plaintiff's case that it should not have been submitted to the jury. It is conceded that the plaintiff was prosecuted by the defendant for an alleged criminal offense,--an assault with intent to kill. He was imprisoned in the county jail for about two weeks, when he was admitted to bail. It was shown by the evidence of the deputy clerk that no presentment had been found against the plaintiff and by the foreman of the grand jury that the case was dismissed. There can therefore be no question that the prosecution had been finally terminated in favor of the appellee. Hyde v. Greuch, 62 Md. 582. A careful examination of the record satisfies us that there was abundant evidence from which the jury could find that the arrest was without probable cause. The testimony of the plaintiff not only tends to show that he did not assault the defendant, but that, on the contrary, he was assaulted by him. It is true that he admits that he threw a brick at the door of the kitchen connected with the house which he wanted to enter to see his father. But the circumstances as detailed by him, which, for the purposes of this prayer, we must accept as true, were such that the jury may well have reached the conclusion that the charge made by the defendant was wholly injustifiable. He was not acting on what others had told him, but on what he could see for himself. The plaintiff testified that "I told him [defendant] that I had come to see my father, and started to enter the kitchen door, and as I placed my foot on the step, he shoved me back, and I caught on my hands. As I fell back, my hand came in contact with a brick, and I picked it up. My brother, by this time, had gone in the kitchen, and left the door nearly closed, being prevented from closing it by my foot placed on the sill. I threw the brick at the door, and then went in the kitchen." The jury might well have found, if they believed that statement, that the defendant was not justified in having the plaintiff arrested for committing an assault on him with a brick, with intent to kill, and that the arrest was without probable cause. If they found that the arrest was without probable cause, they could infer malice, and there was, moreover, other evidence in the case to support that inference. It was clearly a case for the jury to pass upon, and the court would not have been justified in withholding it from them. That prayer was therefore properly rejected.

After the foreman of the grand jury had testified that the case against the plaintiff was dismissed, the defendant asked on cross-examination why it was dismissed. The court refused to permit the question to be answered. The record shows that the witness had been permitted to testify that the case had been dismissed by the grand jury for the purpose of showing that the prosecution was ended. The evidence being admitted for that purpose, it is difficult to see the relevancy of the inquiry why it was dismissed; in other words, why it was ended. But different reasons might have influenced the grand jurors, and it was not competent for the foreman to undertake to give them. As was said in Elbin v. Wilson, 33 Md 144: "All the authorities concur in saying that the juror will not be permitted to state how any member voted, or the opinion expressed by his fellow or himself, or the individual action of any juror in regard to the subject-matter before them." This is not such a case ...