Philpot v. Lucas

• Citation: 70 N.W. 625,101 Iowa 478
• Parties: PHILPOT v. LUCAS.
• Decision Date: 08 April 1897
• Court: United States State Supreme Court of Iowa

101 Iowa 478

70 N.W. 625

PHILPOT

v.LUCAS.

Supreme Court of Iowa.

April 8, 1897.

Appeal from district court, Union county; H. M. Towner, Judge.

This is an action for malicious prosecution by the plaintiff against the defendant. The claim is that the defendant, with malice, and without probable cause, filed an information against this plaintiff, charging him with the larceny of some chickens of the value of two dollars; that he procured the plaintiff's arrest under said information; that upon a trial of the cause before the justice he found the plaintiff not guilty, and discharged him. The defendant herein denies all allegations of malice and want of probable cause, admits the filing of the information, and the trial and discharge of the plaintiff. He pleads facts which he claims were sufficient to warrant him in believing the defendant guilty of having stolen the chickens. He alleges that the decision of the said justice was contrary to the weight of the evidence. On the trial in the district court a verdict was returned against the defendant, on which a judgment was entered, and the defendant appeals. Reversed.James G. Bull and Hugh M. Fry, for appellant.

Copenheffer & Allen, for appellee.

KINNE, C. J.

1. It is said that the court erred in excluding evidence offered by the defendant to the effect that at the time he commenced the criminal proceeding he had knowledge that a great many chickens had been stolen in that neighborhood. True, that fact was pleaded, but, if true, it would not authorize the defendant to proceed criminally against the plaintiff; nor do we discover how such a fact would have availed the defendant, or how it could be said to show, or tend to show, that in causing plaintiff's arrest he did not act with malice, and did have probable cause to believe the plaintiff to have been guilty of the larceny of the particular chickens in controversy. We think the evidence was properly excluded.

2. It is insisted that the court erred in the third instruction given to the jury. The record does not disclose where any instruction begins or ends. No numbers appear in the charge, and hence we cannot say whether that portion of the charge complained of is in fact the third instruction or not. The portion of the charge complained of reads as follows: “The discharge by a magistrate of a person accused of crime upon preliminary examination is prima facie evidence of want of probable cause.” It is insisted that the court erred in underscoring the words “prima facie.” We said in State v. Cater (Iowa) 69 N. W. 883, that it was not proper to underscore words in instructions; that the effect might be to give such words undue weight, and thus to prevent the jury from giving due weight and consideration to other parts of the charge. The words underscored in the instruction under consideration are usually italicized in legal treatises and in judicial opinions, and hence it may be said that they are not embraced within the rule in State v. Cater. It is insisted that the portion of the instruction set out is an erroneous statement of the law, as applicable to the facts of this case. This was not a case of one accused of crime upon a preliminary examination. It was a case where, upon information filed before a justice of the peace, the plaintiff was accused of an offense, not indictable, but triable before the justice. Therefore the charge, though correct as applied to a case of one accused of a crime upon preliminary information (Hidy v. Murray [Iowa] 69 N. W. 1139), was inapplicable to the case at bar, where the crime as charged, petit larceny, was triable by the justice. Appellee contends that there could be no prejudice on account of this error, as the same rule of law is applicable to the case of one discharged on a hearing upon a preliminary information as to one...