Shannon v. Jones

• Decision Date: 04 March 1890
• Citation: 13 S.W. 477
• Court: Texas Supreme Court
• Parties: SHANNON <I>v.</I> JONES <I>et ux.</I>

13 S.W. 477

SHANNONv.

JONES et ux.

Supreme Court of Texas.

March 4, 1890.

Commissioners' decision. Appeal from district court, Galveston county; WILLIAM H. STEWART, Judge.

Action by Z. T. Jones and Delia, his wife, against A. M. Shannon. The court charged the jury that "probable cause means a reasonable ground of suspicion, supported by facts and circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." Judgment was rendered for plaintiffs, and defendant appealed.

Davidson & Minor and W. B. Denson, for appellant. Howard Finley and Walter L. Wilson, for appellees.

HOBBY, J.

Appellee Delia Jones, joined by her husband, sued appellant for an alleged malicious prosecution instituted by him against her on November 17, 1887. The cause of action is alleged to have consisted in the arrest of the said Delia Jones, brought about by an affidavit or complaint, made on the day stated by A. M. Shannon before S. T. Fontaine, recorder of the city of Galveston, charging her with theft of property under the value of $20; all of which was charged to have been done by appellant with malice, and without probable cause. It was alleged that appellee was required to appear before the recorder and give bond to await the action of the grand jury of Galveston county, which body, upon a hearing of said charge, found it to be false, and refused to find a bill; and said prosecution there ended. In addition to allegations of injury to plaintiff in her credit and reputation, etc., it was also averred that she had suffered great anxiety and pain of mind and body, and had been forced and obliged to lay out and expend $100 in procuring her discharge, etc., and by reason of the premises been prevented from following her lawful business, and had otherwise been actually damaged in her credit and circumstances, etc.; laying her actual damages at $2,500. There was a general demurrer and denial and special denial filed by the defendant, to the effect that whatever he did in the matters referred to in the petition was without malice, and with probable cause for believing the same to be true. A trial by jury in November, 1889, resulted in a verdict for the plaintiff for $125, actual damages, for which judgment was entered in favor of plaintiffs. This is appealed from upon the following errors, properly assigned:

The first consists of a criticism upon the court's definition of "malice." It has been said by an eminent text-writer, in substance, that few words within the range of criminal law have been used in such various and conflicting senses as the term "malice." Steph. Crim. Law, 81, cited in Townsh. Sland. & Lib. p. 128, note 1. The definition of this term complained of is sufficiently comprehensive. It is as follows: "`Malice' means wickedness of purpose, or a spiteful or malevolent design against another; a purpose to injure another; a design of doing mischief, or any evil design or inclination to do a bad thing, or a reckless disregard of the rights of others, or an intent to do an injury to another, or absence of legal excuse, or any other motive than that of bringing a party to justice." The foregoing, although not identical in its phraseology with numerous definitions contained in Townshend on Slander & Libel, 128 et seq., embraces substantially several there given. Of that given by the court of "probable cause," it is enough to say that it is in entire accord with the familiar formula of Mr. Justice WASHINGTON in Munns v. Dupont, 3 Wash. C. C. 31, and adopted in a great number of cases on this subject since. Landa v. Obert, 45 Tex. 544.

There is no merit in the second and third assignments, and the propositions thereunder, complaining that the verdict is not responsive to the pleadings, and does not support the judgment. Two plaintiffs — the husband and wife — are named in the petition. The wife is the real plaintiff, being joined formally by her husband. The verdict is for the "plaintiff;" the judgment is in favor of the "plaintiffs." There can be no sort of doubt that a reference to the petition, which could be made to aid the verdict, showed that the verdict was intended for the plaintiffs. As in this character of suit the husband is required to join the wife, any verdict against the defendant is necessarily in favor of both plaintiffs.

The substance of the fifth assignment is that "the verdict is not supported by the evidence, because it failed to show malice and want of probable cause in the prosecution of appellee; and because probable cause was shown by the testimony of two witnesses besides appellant, all of whom saw the turkeys in appellees' yard, which was not contradicted." A review of the facts of record in the case is indispensable to a proper appreciation of the force of this assignment. The testimony in behalf of the appellant was that he "had in his yard at home a dozen unusually fine and singularly marked gobblers, — very large, white and black, and glossy. Appellees lived adjoining, just across the alley. On returning home one evening, one of his servants informed him that some of his turkeys had gone over into appellees' yard. He sent his servant Amzy Harrell over after the turkeys the next day, and he reported back that Mrs. Jones said they were not there. Appellant then went over himself, knocked at the door of Mrs. Jones' house, which was opened by a white woman, who said Mrs. J. was sick in bed. "She spoke to me. I told her my turkeys had flown over in her yard, and I had come to get them. She said she had only two turkeys, which had been sent to her by express. I asked her who sent them, and she replied that she did not know; that they were frequently sent to her by express by her mother and others. She could not give the name of the drayman who she said had brought them to her. I told her that was too thin, and she had better send my turkeys home. It was then about dusk." On the following day appellant met an attorney at law in whom he had confidence; stated the case to him fully, and asked his advice as to what he should do. He advised that appellant send an officer out, and have him get the turkeys, or to have Mrs. Jones arrested if he did not get them. Appellant went to each of the express companies, and found appellees had received no turkeys by express. Appellant also made full statement of the case to the city recorder before he made the affidavit, and he gave the same advice as that given by counsel he had consulted. Appellant had never known Mrs. Jones before, and stated under oath that he had no malice against her. Appellant stated that he saw the turkeys at Mrs. Jones' yard the evening he was told about them. They were running about the yard. He could not swear positively that they were his, but to the best of his knowledge and belief they were. Appellee Mrs. Jones testified that on November 16, 1887, appellant came to her door. She was then quite sick, — confined to her bed. "Mrs. Rexar opened the door. He said he came to see if we had any of his turkeys in our yard. I told him I had only two turkeys of my own; they were in a coop in the yard, and he could go and look at them. He went away. Never saw him again. Was arrested the next day by a policeman who came to the house with a warrant, charging me with stealing the turkeys. He read it to me while I was sick in bed." Witness then describes at length the effect upon her, mentally and physically, of the shock. "The officer told me he wanted me or a bond, and if I did not give bond he would haul me to jail. I told him to see my husband, who was working for Lammers & Flint." As to what transpired at appellees' house, and the conversation...