Sebastian v. Cheney

• Decision Date: 22 March 1894
• Citation: 25 S.W. 691
• Parties: SEBASTIAN v. CHENEY.
• Court: Texas Supreme Court

25 S.W. 691

SEBASTIAN v. CHENEY.

Supreme Court of Texas.

March 22, 1894.

Error from court of civil appeals of fifth supreme judicial district.

Action by Andrew Cheney against Ed Sebastian. The court of civil appeals (24 S. W. 970) affirmed a judgment for plaintiff, and defendant brings error. Reversed.

J. W. Finley, for plaintiff in error.

BROWN, J.

Cheney sued Sebastian in the district court of Grayson county to recover damages for malicious prosecutions of plaintiff, alleged to have been caused and maintained by defendant with malice and without probable cause. Defendant answered, alleging that the plaintiff had rented land from him under a contract that he (plaintiff) would cultivate and gather the crop upon the land, and deliver to defendant one-fourth of the cotton raised thereon; that plaintiff had sold about $96 worth of the cotton, had appropriated the defendant's interest (one-fourth part) to his own use without the consent of the defendant, and had fled the country; that defendant made a fair statement of the facts to the county attorney of Grayson county, who prepared affidavits for defendant to swear to, and in his official capacity the said county attorney instituted the prosecutions complained of. Plaintiff filed a supplemental petition, in which, among other things, he alleged that defendant was indebted to him in a sum much greater than the interest of defendant in the cotton sold; that he had tried to secure a settlement with defendant, had failed, and kept the money for the cotton to pay himself in part what the defendant owed him; that defendant knew that he was retaining it for that purpose, and did not object. Defendant excepted to the supplemental petition, in so far as it set up the indebtedness of defendant to plaintiff, because it was irrelevant to the issues in the case. The court overruled the exceptions, which ruling was sustained by the court of civil appeals.

The facts alleged show that plaintiff had a three-fourths interest in the cotton, and the right to sell it. It is not a case in which a creditor seized the property of his debtor without process, selling it to pay his debt; but plaintiff, having the lawful possession of the fund, and claiming an indebtedness against the defendant, retained it in satisfaction of a claim honestly made. Where money is retained under such circumstances, it is not a crime. Ross v. Innis, 35 Ill. 487. It was admissible to prove the facts alleged for the purpose of explaining the acts of plaintiff, and also to show the knowledge of defendant, as evidence of malice on his part. The court did not err in overruling the defendant's exceptions to the third supplemental petition.

Plaintiff in error complains of the seventh clause of the charge given by the court, which is as follows: "In this state no one can invoke the criminal law to merely have decided any civil question affecting the indebtedness due from one citizen to another, or other civil right; and if you find from the evidence that Sebastian knew that Cheney did not steal or embezzle his cotton, but his object in instigating the criminal prosecution, or prosecutions, (if you find that he did instigate such prosecutions,) was to obtain the payment to him by Cheney of his (the defendant's) part of the rent cotton, then the defendant is liable to the plaintiff in damages." It is objected that this charge is upon the weight of the evidence. We think that the charge announces a correct proposition of law. Gabel v. Weisensee, 49 Tex. 131; Holt v. Follett, 65 Tex. 554. The charge guards the interests of the defendant by requiring that it should appear that the defendant knew that plaintiff was not guilty, as he charged, before he could be held liable in damages, which was more favorable to defendant than the law justified. If there was no probable cause for the prosecution, and defendant instituted it to collect his demand, he would be liable. The charge of the court, as a whole, is a fair presentation of the law upon the issue submitted by it.

The court of civil appeals filed conclusions of fact, among which are the following: "At the time appellee took the cotton, he claimed that appellant was indebted to him in a sum greater than the value of one-fourth of the cotton. This liability was denied by appellant. In a few days after the cotton was taken, appellant went to the county attorney at Sherman, and was by him referred to his assistant, Mr. Wood. Appellant related the facts to Mr. Wood, except as to the claim of indebtedness made by appellee against him. R. R. Hazlewood, an attorney, came into the office while they were talking over the matter, and Mr. Wood stated the case to him, and asked what he thought of it. Hazlewood turned to the statute upon embezzlement, and told him, if that law did not cover the case, there was no law that did. Mr. Wood then prepared a complaint against the plaintiff for embezzlement of cotton over the value of $20, and appellant signed and swore to it before a justice of the peace. Upon the complaint, a warrant was issued, and under it appellee was arrested in Bell county, brought to Grayson county, was kept in jail about six days, and was carried before the justice of the peace, appellant appearing as prosecuting witness, and was discharged without trial, the case being dismissed at the suggestion of Mr. Wood." Upon appellee's being discharged from the first complaint, appellant made complaint against him for the theft of the cotton, under the advice of Mr. Wood, upon which he was arrested, had an immediate hearing, and was discharged by the court, appellant testifying against him. The court further finds, in substance, that in the month of March, 1889, the county attorney suggested to Sebastian to go before the grand jury, which he failed to do, whereupon the county attorney had him subpoenaed, and the grand jury indicted Cheney for theft of the cotton. When before the grand jury, Sebastian said that he thought that the matter was ended before the justice of the peace; that he had tried twice before the justice of the peace, and failed to get his money, and he wanted nothing more to do with it. Cheney was arrested under the indictment, but the county attorney dismissed the case for want of evidence to support the charge. Plaintiff in error insists that a new trial should have been granted him because there was no evidence to show want of probable cause; in fact, that the undisputed evidence shows that he had advised the county attorney of the facts, who acted in his official character in preferring the charges. The court of civil appeals overruled this assignment of errors, not because the plaintiff in error failed to disclose the facts, but upon the broad proposition that the action and advice of the county attorney did not constitute a defense. The finding of the court of civil appeals does not include the important fact that Sebastian knew of plaintiff's claim that he was holding the money in settlement of a claim against him at the time that he made the complaint. The sufficiency of facts found by the court of civil appeals to support the verdict is a question of law, upon which this court will revise the judgment of that court. The decisions of this court have settled the doctrine that "the advice of an attorney upon a full and fair statement of all the facts will not justify a prosecution; it is not a complete defense; it is a fact to be considered by the jury, and they may still find malice and a want of probable cause, notwithstanding such advice." Ramsey v. Arrott, 64 Tex. 324; Glasgow v....