Ross v. Hixon

• Decision Date: 06 June 1891
• Citation: 26 P. 955,46 Kan. 550
• Parties: ROSS v. HIXON.
• Court: Kansas Supreme Court

26 P. 955

46 Kan. 550

ROSS v. HIXON.

Supreme Court of Kansas

June 6, 1891

Syllabus

The finding of an examining magistrate that “an offense had been committed, and that there was probable cause to believe the defendant guilty thereof,” is only prima facie evidence of probable cause, in an action for malicious prosecution brought by such defendant against the prosecuting witness.

Commissioners’ decision. Error from district court, Bourbon county; C. O FRENCH, Judge.

Hulett & Fletcher and Cory & Hulbert, for plaintiff in error.

Hill &amp Chenault, for defendant in error.

OPINION

SIMPSON, C.

On the 17th day of January, 1887, Hixon filed an affidavit before a justice of the peace in Bourbon county, charging Ross with having mixed certain poison with a quantity of flour, with the intent and for the purpose of causing the death of certain persons. Upon said complaint a warrant was issued and Ross was arrested. A preliminary trial was had on the 4th of February before the justice who issued the warrant. At the preliminary examination 12 witnesses were examined for the state, and 7 for the defendant. After the hearing of all the evidence, the justice bound Ross to appear at the district court and answer the charge. He failed to give bond, and was committed to jail. The finding of the justice was as follows: "After hearing the evidence, I find that said offense has been committed, and that there is probable cause to believe the defendant guilty thereof."

Ross was in jail from the 17th day of January, 1887, until May 2, 1887. On the latter date, the district court of Bourbon county being in session, the county attorney filed a statement showing cause for non-prosecution, and Ross was discharged. On the 8th day of August, 1887, he commenced this action for malicious prosecution against James Hixon, the prosecuting witness. Trial was had at the May term, 1888. The plaintiff in error offered evidence showing the proceedings before the justice of the peace on the criminal charge, and tending to prove every material allegation in such an action. When the plaintiff rested, the defendant Hixon introduced a large number of witnesses, when he was interrupted by the court. The trial was stopped, and a verdict was ordered for the defendant. The jury returned a verdict for the defendant, and a motion for a new trial was overruled. The record itself discloses no reason for the ruling of the court, but counsel agreed that the reason assigned by the trial court was that the examining magistrate had made a finding of probable cause, and that such finding was conclusive upon that question. It is further claimed by counsel for the defendant in error that the trial court made the further statement: "That, as the petition does not charge fraud or undue means in obtaining the finding of probable cause by the magistrate, the same cannot be attacked."

The sole question discussed in the oral argument of counsel for defendant in error, and the briefs on both sides, is as to the weight to be given to the finding of the examining magistrate as to whether it is prima facie or conclusive on the question of probable cause, and whether or not, in either case, the finding must be attacked for fraud or undue means by proper allegations in the petition.

1. In the case of Sweeney v. Perney, 40 Kan. 102, 19 P 328, this court incidentally noticed the conflict in authorities as to whether or not proof of arrest committal and indictment is prima facie proof of probable cause; and the case of Ricord v. Railroad Co., 15 Nev. 167, was cited on one side, and that of Womack v. Circle, 29 Grat. 192, on the other. The question in this case is closely allied to this controversy, but authorities cannot be found on both sides of this question. In the case of Bauer v. Clay, 8 Kan. 585. Justice VALENTINE, says: "The proof showing that the justice ordered that Clay should be bound over for his appearance at court, or, in default of bail, that he should be committed to the county jail, is only prima facie, and not conclusive, evidence of probable cause." The cases of Ash v. Marlow, 20 Ohio, 119, and Ewing v. Sanford, 19 Ala. 605, are cited in support. The force of this decision is sought to be destroyed by counsel for defendant in error by an assertion that it is dictum . It is sometimes difficult to draw the line between what is authoritative and what is not in a judicial opinion. The report of the case does not give either the pleadings, the assignment of errors, or the briefs, but it is evident that the question was necessarily involved in the rulings of the trial court; and this court thought it necessary to give this as one of the reasons for affirmance of the judgment below, because, if counsel for defendant in error are now right in their contention, Clay had no cause of action, and the case was decided wrongfully in both the trial and the appellate courts. However the rule may be in cases in which the magistrates have jurisdiction to hear and pass judgment, we are satisfied that the case of Bauer v. Clay states the true rule in cases in which the magistrates have only power to bind over. This rule is upheld by the cases of Ash v. Marlow, 20 Ohio, 119; Ewing v. Sanford, 19 Ala. 605; Raleigh v. Cook, 60 Tex. 438; Ricord v. Railroad Co., 15 Nev. 167; Hale v. Boylen, 22 W.Va. 234; Bacon v. Towne, 4 Cush. 217; Spalding v. Lowe, 56 Mich. 366, 23 N.W. 46; Ganea v. Railroad Co., 51 Cal. 140; Diemer v. Herber, 75 Cal. 287, 17 P. 205. These are all express adjudications on that particular question In one of these cases, decided in 1885, being that of Spalding v. Lowe, 56 Mich. 366, 23 N.W. 46, the defendant requested the trial court to instruct the jury as follows: "It appears from the proofs in this case that an examination was had upon the charge made against Spalding, and that the justice upon such examination determined that this offense charged against Spalding had been committed, and that there was probable cause to believe said Spalding guilty thereof. This was a judicial determination the justice was authorized to make, and unless such action and determination of the justice was corrupt or collusive, or was wrongfully procured by the defendant...