Pierce v. Lyons

• Decision Date: 19 February 1920
• Docket Number: 4603
• Citation: 176 N.W. 521,42 S.D. 543
• Parties: HENRY PIERCE, Plaintiff and respondent, v. JOHN J. LYONS, Defendant and appellant.
• Court: South Dakota Supreme Court

42 S.D. 543

176 N.W. 521

HENRY PIERCE, Plaintiff and respondent,

v.

JOHN J. LYONS, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. Frank Anderson, Judge #4603--Affirmed Van Slyke & Bartlett Attorneys for Appellant. Williamson, Williamson & Smith Attorneys for Respondent. Opinion filed February 19, 1920

GATES, J.

Action for damages for malicious prosecution. From a judgment in favor of plaintiff for $500 and costs, and from an order denying new trial, defendant appeals.

The evidence on the part of plaintiff, which, though in some respects contradicted, we must take as true for the purposes of this appeal, tended to show the following situation. Plaintiff and wife were employed by defendant to work on the farm of defendant north of Rudolph, in Brown county, for the season of 1918. It was agreed that the wife was to do the cooking and housework and was to have half of the chickens raised. Plaintiff and wife stayed on the farm from February 13 to May 8, 1918, and the wife raised 80 chickens. On the Friday before May 8th defendant discharged plaintiff and wife.

Plaintiff attempted to get the money due him, but defendant would not pay it all. Plaintiff told defendant he did not have money to ship his good's by rail to Northville, where he had a job, and said he would have to use defendant's team. Defendant said, "All right," but kept putting him off about the money. On May 8th plaintiff loaded his goods and 18 chickens on defendant's wagon, covered them with a blanket and two bed comforters to keep off the dew and rain the night before, and with defendant's team drove to Northville. On the road a dog belonging to one Foster joined and followed them. After plaintiff had unloaded his property at Northville, defendant came and took him before a justice of the peace at Northville. Plaintiff was discharged, and defendant took his team and belongings back to the farm. On the same day defendant filed a complaint in the municipal court of Aberdeen, charging plaintiff with petit larceny, viz., with stealing 18 chickens, two blankets, and a shepherd dog. Plaintiff was again arrested and brought before the court, and on motion of the state's attorney was discharged. On June II, 1918, defendant filed complaint in the same court charging plaintiff with grand larceny, viz., with stealing two horses, a hayrack, a wide tire wagon, 18 chickens, a horse blanket, and two bed comforters. Plaintiff was again arrested and brought before the court and on motion of his attorney was discharged.

The complaint in this case was based upon the arrest under the grand larceny charge only. Appellant complains of the receipt in evidence of the petit larceny proceedings. Such evidence was admissible on the question of motive. It was also evidence tending to corroborate respondent's claim that he was using appellant's team and wagon by permission because the petit larceny charge made no reference to the team. The previous prosecution and dismissal of respondent for larceny involving identical articles tended to show malice in the later prosecution. Magmer v. Renk, 65 Wis. 364, 27 NW 26: Comeford v. Morwood, 158 N.W. 258. Appellant also claims error in requiring him to testify that the two complaints related to the same transaction and as to the...