Peck v. Chouteau

• Decision Date: 28 February 1887
• Citation: 3 S.W. 577,91 Mo. 138
• Parties: Peck, Appellant, v. Chouteau et al
• Court: Missouri Supreme Court

3 S.W. 577

91 Mo. 138

Peck, Appellant, v. Chouteau et al

Supreme Court of Missouri

February 28, 1887

Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.

Affirmed.

James J. Lindley and F. J. Bowman for appellant.

(1) The indictment of witness, Engelke, some eight years before, in the United States court, should not have been admitted in evidence. It was not the record of the conviction of an infamous crime; it was, at best, but a method of proving a specific charge. Seymour v. Farrell, 51 Mo. 97; State v. Breeden, 58 Mo. 507; State v Shields, 13 Mo. 236. Proof of specific acts are not admissible to impeach the character of a witness. Conly v. Meeker, 83 N.Y. 618. (2) Indictment and sworn charges before a magistrate are not admissible to discredit a witness, when he is not shown to have been convicted thereon. People v. Gay, 7 N.Y. 378; Jackson v Osborn, 2 Wend. 555. (3) It was error to permit the witness, Dyer, to testify in contradiction of the evidence of Engelke, as to the whiskey indictments. The court should not have permitted Engelke to be contradicted on a collateral question asked by defendants. Muller v. St. Louis, 5 Mo.App. 402. (4) It was erroneous for the court to instruct the jury that actual ill-will, or dislike, by defendants towards plaintiff, is not malice, in its legal sense. 2 Greenl. on Evid. [10 Ed.] p. 403. (5) Instruction numbered two, for defendants, was erroneous. The finding of the indictment was wholly, or partly, the work of defendant, Chouteau, and the fact of the finding cannot be evidence in his behalf; if so, he can make evidence for himself, and by the very instrument concocted to do so much wrong and injury to plaintiff. (6) Defendants' instruction, numbered three, should not have been given. A party, having wickedly and maliciously caused and procured a person's arrest, cannot relieve himself from responsibility by subsequently withdrawing from the prosecution of the false charge he caused to be preferred, or by directing his attorney to do so. (7) It was error for the court to refuse plaintiff's instruction, numbered one. The law is settled that if an attorney, dishonestly and for some purpose of his own, with some sinister view of his own, prefers the indictment, lodges the information, or urges the prosecution, he is liable to the plaintiff, and his employment by his client, either general or special, will not shield him.

S. Hermann and G. A. Madill for respondents.

(1) When a party complains of error in the ruling of the trial court, his bill of exceptions should not only show the specific objections made, but the fact in evidence, and its connection with what precedes and follows it in the case, should be so fully and clearly brought out, and preserved in the bill, as to make it obvious, without strain or doubtful inference, that the ruling was erroneous; and, unless this is done, this court will affirm the ruling of the court below. McMillan v. State, 13 Mo. 33; Douglas v. Stevens, 18 Mo. 368; Houston v. Lane, 39 Mo. 498; Holmes v. Braidwood, 82 Mo. 613; State v. Tucker, 84 Mo. 26; State v. Brown, 75 Mo. 317. (2) In actions for malicious prosecution, for the purpose of rebutting malice and establishing the existence of probable cause, defendant may put in evidence any facts which tend to establish the guilt of plaintiff, whether he knew them of his own knowledge, or whether they were communicated to him by others, or, even, by public rumor; provided he can show that he knew, or learned, the facts before engaging in the prosecution, and that he believed them. Such testimony, in this class of actions, is original evidence, and not hearsay. Barron v. Mason, 31 Vt. 189; 2 Greenl. on Evid. [Redf. Ed.] sec. 454; Bacon v. Towne, 4 Cush. 217; Pullen v. Glidden, 68 Me. 563; Forshay v. Ferguson, 2 Denio, 617; Hitchcock v. North, 5 Rob. [La.] 328; 3 Suth. on Dam. 708; Israel v. Brooks, 23 Ill. 577; Bush v. Prosser, 11 N.Y. 348, 356, 360, 367; Bisbey v. Shaw, 12 N.Y. 70; Kennedy v. Holborn, 16 Wis. 458. (3) Malice, in actions for malicious prosecution, is defined as "the want of a sincere belief of the plaintiff's guilt of the crime for which the prosecution was instituted." Malice, in this connection, may also be defined as "a wrongful act, done intentionally, without legal justification or excuse." Barron v. Mason, supra; Sharpe v. Johnston, 59 Mo. 558. (4) In the cross-examination of a witness, he may be asked any questions which tend to test his accuracy, veracity, or credibility; or, to shake his credibility, by showing his character. He may be compelled to answer any such question, however irrelevant to the facts in issue, and however disgraceful the answer may be to himself. The exceptions to the above rule are not in point here. Stephens' Dig. Evid. 123; Muller v. St. Louis, 5 Mo.App. 401; S. C., 73 Mo. 243. (5) In order to make an attorney liable, in an action for malicious prosecution, it must not only appear that he brought an action which was, in fact, groundless; it must further appear that it was agreed, between the client and the attorney, to bring an action, known to both to be groundless, and to bring it as such. Burnap v. Marsh, 13 Ill. 538; Becknell v. Darion, 16 Pick. 478; Campbell v. Brown, 2 Woods, 350.

OPINION

Black, J.

This was an action for malicious prosecution, in which Charles P. Chouteau, John M. Glover, and Joseph H. Livingston were made defendants. The cause was dismissed as to Livingston. Verdict and judgment for the defendants, from which the plaintiff appealed.

The substantial averments of the first count are, that, on the eighteenth of July, 1882, the plaintiff was indicted upon a charge of fraudulent conspiracy with Engelke and Barrett to defraud Alice Livingston and others interested in a corporation known as the Windsor Hotel Company; that he was arrested on the twenty-sixth of July, 1882, and tried and acquitted on the twenty-first of December, 1882, in the court of criminal correction of St. Louis; that Chouteau was a member of the grand jury which returned the indictment, Livingston a witness, upon whose false statements the indictment was procured, and Glover assisted in its procurement; that the defendants, maliciously and without probable cause, procured the indictment and caused the plaintiff to be arrested and prosecuted thereunder. The second count, omitting the various charges of malice and want of probable cause, states that defendants procured the arrest of the plaintiff on the twenty-second of December, 1882, upon a false charge of conspiring to defraud Alice Livingston; that this charge was withdrawn, on the fifteenth of January, 1883, but before it was withdrawn, and on the same day, another one was lodged against him, upon which he was arrested; that he was tried in the same court, acquitted, and discharged on the sixteenth of March, 1883.

The answer of Chouteau is a general denial, with the averment that, at and prior to the alleged grievances the general reputation of the plaintiff for honesty and integrity was bad. Glover made a like answer, with the additional averment that, whatever he did was done as a duly enrolled and practicing attorney, and not otherwise. Very little of the evidence offered on the trial, which was hotly contested, lasting for at least two weeks, is preserved. The record recites that plaintiff offered evidence tending to prove the allegations of the petition, and there was evidence tending to sustain the issues on behalf of the defendants, and to disprove the averments of the petition. The records from the court of criminal correction are in evidence, and they show that the plaintiff was arrested, tried, and acquitted on the indictment and on the information, as stated in the petition. They show, however, that Barrett and Bernard H. Engelke were also included in the same prosecutions with plaintiff, and were also acquitted.

1. Various errors are assigned in the admission of evidence over the objections of plaintiff. And, first, in the cross-examination of Engelke, and the direct examination of Dyer, a witness called by the defendants, general objections were made by the plaintiff, of which the following will serve as an example: "Counsel for the plaintiff objected; objection overruled, and plaintiff excepted." The ruling of the trial court on such general objections cannot be reviewed here. The objections must show the specific grounds on which they are made Shelton v. Durham, 76 Mo. 434. The rule has been so often asserted and well understood that there can be no hardship in its enforcement. Unless adhered to with rigor, we must reverse causes upon points of evidence not called to the attention of the trial court, and often not intended to be raised on the trial at all. The various objections of the character before noted need not be specially mentioned; what is here said will suffice as to all of them.

2. Again, the bill of exceptions states that Bernard H. Engelke a witness for the plaintiff, and one of the persons named in the indictment and information, was fully examined as to all the matters relating to the controversy, and as to the circumstances connected with making the alleged fraudulent loan; that he testified that the money was paid to the hotel company, and to other material facts in the case; that, on cross-examination by defendant, he testified as follows: "Did you ever before decline a proposition to turn state's evidence and betray your friends?" The plaintiff objected on the ground of immateriality; the objection being overruled, he excepted, and the witness answered: "I never had such a proposition made to me by any man until this offer." The question and the answer both plainly indicate that something had been said previously, in the examination, in respect of a...