Riney v. Vanlandingham

• Decision Date: 31 January 1846
• Citation: 9 Mo. 816
• Parties: RINEY v. VANLANDINGHAM.
• Court: Missouri Supreme Court

9 Mo. 816

RINEY

v.VANLANDINGHAM.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO SCOTLAND CIRCUIT COURT.

CARTY WELLS, for Plaintiff. 1. The evidence was not sufficient to prove either malice or want of probable cause. The weight of evidence is decidedly the other way; therefore a new trial should have been granted. 2.

Plaintiff's own statement to Hickman, Riney not being present, was illegal evidence. He could not in that way make evidence for himself. 3. Riney's evidence before the justice ought to have been admitted. The question was not what Vanlandingham swore, but whether what he swore was true. If the two Andersons and Rice were not present at the alleged conversation, then no one was present but plaintiff and defendant; and if so, from policy and for his own protection, Riney's evidence before the justice ought to have been received. If these persons were present, then the statement of Vanlandingham is untrue, and the case was not made out. The statement of R. to V. that, “what he had sworn was true, or that he had went it like a man,” was evidently ironical, and intended as a censure. R. immediately had him arrested. 4. The first instruction given for the plaintiff below is erroneous for two reasons: 1st. It goes on the ground that perjury was the charge made by Riney against V., whereas neither the declaration or the evidence show any such charge as perjury. The words spoken are not shown to have been at all material to the issue. Indeed it is nowhere shown, either in pleading or evidence, what the issue between Lowen and Riney was. The instruction, therefore, was wholly irrelevant. 2nd. It assumes that want of probable cause is sufficient to maintain the action. This is not the law. Although malice may be inferred from “want of probable cause,” still it must be proven as a fact. The first instruction assumes a contrary position. 5. The second and third instructions taken together, are exceedingly erroneous. Here the court weighs the evidence for the jury, and tells them how much evidence is sufficient. The court say in substance: “The discharge almost proves the plaintiff's case. A very little more evidence is enough.” 1st. A discharge does not always raise the presumption of innocence; it depends on circumstances, and in this case the circumstances were the other way; and, 2nd. It is the province of the jury, and not of the court, to weigh evidence, and to decide how much is sufficient. The terms “very slight evidence,” are too indefinite for a court to use before a jury. Who can tell how much “very slight” evidence is? 6. The fourth and fifth instructions are still on perjury, and are as before shown irrelevant. 7. If the instructions asked by defendant were given they are utterly inconsistent with those given at the instance of the plaintiff, and this is error. The jury could not know which to regard; one set requires the proof of both malice and want of probable cause; the other set requires only want of probable cause. If not given, it was error to refuse them; they are clearly legal. 8. But in addition to the above points, plaintiff insists that Riney's affidavit charged no crime, and that no warrant should have been issued. The affidavit containing no charge of crime, the justice had no authority to issue his warrant. Is Riney lamed for the unlawful act of the justice? The declaration contains no cause of action. Can a verdict and judgment on such a declaration be sustained?

GLOVER & CAMPBELL, for Defendant. The testimony was conflicting. The jury might well have given the verdict, and it is against the practice of the court to disturb it. 6 Mo. R. 61. The defendant, in an action of this sort, is never allowed to introduce his own testimony on the trial of the prosecution, except when no other person was present at the commission of the alleged offense; here the offense was charged to have been committed at the court house, in the presence of many persons. 2 Mo. R. 181; 6 Mo. R. 41; 4 Phil. Ev. 259. The court committed no error in instructing the jury, that the discharge of the plaintiff by the justice was a circumstance tending to show the want of probable cause, and that slight evidence in addition thereto would be required of the plaintiff in the absence of all repellant testimony on the part of the defendant. 8 Mo. R. 342. Where there has been no probable cause for the prosecution, express malice need not be shown. In such case the law presumes malice. 8 Mo. R. 342; 2 Tuck. Com. 64; 4 Litt. 335; 1 Marsh. R. 224. The defendant's affidavit could not be evidence for him. The law compels the plaintiff to introduce it; he can in no other way prove the prosecution. We have just seen that the testimony of the defendant, even where the plaintiff has cross-examined, cannot be evidence against the plaintiff; and if not, upon what principle could his ex-parte affidavit come in?

NAPTON, J.

Vanlandingham brought his action against Riney for a malicious prosecution, and obtained a verdict and judgment. The groundwork of this action originated in a suit between Riney and one Lowen, in which Lowen was the plaintiff. Upon the trial of this suit of Lowen v. Riney, Vanlandingham was examined as a witness and testified that Riney, shortly after the affray between him and Lowen, had said, “Bill, I have whipped the old stud; I have whipped him like damnation,” meaning thereby that said Riney had whipped said Lowen. This conversation Vanlandingham said took place at the house of Elijah Anderson, in the presence of said Elijah, and Willis Anderson, and Plim Rice. Shortly after this trial, Riney made affidavit before a justice of the peace, charging Vanlandingham with perjury in making this statement. A warrant was issued, and Vanlandingham was arrested. An investigation took place, and Vanlandingham was discharged. For the proceeding on the part of Riney, the present action was brought.

On the trial the plaintiff proved the proceedings before the magistrate--the affidavit, warrant, arrest and acquittal; and further proved that Riney had boasted of having whipped Lowen to others, in language very similar to that attributed to him by Vanlandingham. The plaintiff also proved that Riney was present at the trial, and after hearing Vanlandingham's evidence, had observed to a bystander “that Vanlandingham had sworn the truth, or had went it like man;” and the witness did not think the remark ironical.

The defendant proved by Elijah Anderson, that he (Anderson) did not hear any such conversation between Vanlandingham and Riney, as Vanlandingham had testified to; and that they were not very friendly. The same statement was made by W. Anderson; P. Rice, it was proved, had died before the trial. Defendant also proposed to use as evidence his own statements made before the examining magistrate: but this was denied, and exceptions were taken.

The plaintiff in rebuttal then proved that Vanlandingham had made to a witness, just before the trial, the same statement he made on oath at the trial, in almost the some language; and that Vanlandingham had desired witness not to mention it, as he (V.) did not wish to be a witness on account of the unfriendly feeling existing between him and Riney. This testimony was objected to; but it was admitted and no exceptions were taken.

The court, at the instance of the plaintiff, gave the following instructions to the jury: 1. That if the jury believe from the evidence in the cause that the defendant caused the plaintiff to be arrested on the charge of perjury, without having probable cause of the plaintiff's being guilty of willful and corrupt perjury, that they should find a verdict for the plaintiff. 2. That the discharge of the plaintiff by the justice who examined the charge against him, is one circumstance tending to prove the want of probable cause for the arrest and prosecution. 3. That slight evidence on the part of the plaintiff to prove want of probable cause for the arrest of the plaintiff, after his acquittal, is sufficient, unless rebutted by evidence on the part of the defendant. 4. That if the jury believe from the evidence, that the defendant had not probable cause for the arrest of plaintiff on the charge of perjury, that in that case no express malice need be proved by the plaintiff, to entitle him to a verdict. 5. That if the jury believe from the evidence that the defendant had not probable cause for charging and arresting the plaintiff for perjury, that they...