Sharpe v. Johnston

• Citation: 76 Mo. 660
• Parties: SHARPE, Appellant, v. JOHNSTON.^a1
• Decision Date: 31 October 1882
• Court: Missouri Supreme Court

76 Mo. 660

SHARPE, Appellant,

v.JOHNSTON.^a1

Supreme Court of Missouri.

October Term, 1882.

[COPYRIGHT MATERIAL OMITTED]

Appeal from St. Louis Court of Appeals.

AFFIRMED AFTER REMITTITUR.

The following are the instructions referred to in the opinion: For the plaintiff:

7. The defendants cannot shield themselves under the advice of counsel, unless they show that they communicated to such counsel all the facts bearing upon the guilt or innocence of the accused, which they knew or by reasonable diligence could have ascertained.

8. Even if the jury should find from the evidence that the defendants, prior to such prosecutions, communicated to counsel, learned in the law, all the facts, as defined in instruction number seven for the plaintiff, yet, nevertheless, if they should further find that said prosecutions were commenced or carried on at the instance of defendants, and that they were without probable cause, and that such counsel was not consulted by them in good faith, but that defendants were actuated in consulting said counsel, and in commencing or carrying on said prosecutions with angry passions and a hostile desire to injure and wrong the plaintiff, then the opinion and advice of such counsel is of no avail as a defense in the cause.

For the defendants:

5. If the jury believe from the evidence that the defendants, before the criminal prosecutions given in evidence were begun against plaintiff (Sharpe), consulted in good faith with one or more attorneys at law, and communicated all the facts within their knowledge, or which they might have learned by reasonable diligence bearing upon the guilt or innocence of said Sharpe of the crime alleged, that said consultation and communication was had and made by defendants in good faith with the view to the advice of counsel learned in the law; that said attorney or attorneys so consulted, upon such submission of facts advised that plaintiff was liable to criminal prosecution therefor, and if the jury further find that said prosecutions were begun and carried on by defendants in good faith in accordance with said advice, and not in pursuance of a previous determination to commence said prosecution, then there was probable cause therefor, and the jury will find for the defendants.

13. If the jury believe from the evidence that the indictments in the criminal court were found against the plaintiff for the same offense charged against him in the affidavit in the court of criminal correction, then there was probable cause of plaintiff's guilt of the offense charged, and the burden of proof rests upon the plaintiff to overcome such prima facie case, and if the plaintiff has failed to do so, the jury will find for defendants.

14. If the jury believe from the evidence that the second indictment offered in evidence was found by the grand jury for the same offence charged in the first indictment, and that the second indictment superseded the first, and that there was no trial had on the said first indictment, then the jury cannot find for the plaintiff on the second count of plaintiff's petition.

15. If the jury believe from the evidence in the case that after the discharge of the plaintiff in the court of criminal correction that he was indicted in the criminal court by the grand jury for the same offense charged against him in the affidavit made by Henry C. McPike in the court of criminal correction, then prima facie defendants had probable cause to believe plaintiff guilty of the offense charged in such affidavit, and unless the jury believe that such indictments were procured by the defendants by false and fraudulent testimony before the grand jury, the verdict must be for defendants on all the counts in the petition.

16. If the jury believe that the indictments read in evidence were found against plaintiff for the same offense of which he had been discharged in the court of criminal correction, then prima facie there was probable cause of plaintiff's guilt of the offense charged against him, and the jury will find for defendants on all the counts in plaintiff's petition, unless they further find that the said indictments were procured by defendants by false and fraudulent testimony, and with express malice against the plaintiff.

17. If the jury believe that the indictments in the criminal court were found against the plaintiff by the grand jury for the same offense charged against him in the affidavit in the court of criminal correction, then prima facie there was probable cause of defendant's guilt, and the burden of proof rests on plaintiff to show that said indictments were procured by defendants, and prosecuted with express malice against the plaintiff; and unless the jury so find they will find for defendants on all the counts in plaintiff's petition.

Lackland & Martin for appellant.

The eighth instruction for plaintiff was properly given. The ablest and most recent, as well as the most ancient authorities, require good faith in procuring the advice and commencing or carrying on the prosecution. Neither is there any conflict as to what constitutes good faith in such matters. Skidmore v. Bricker, 77 Ill. 164; Lemay v. Williams, 32 Ark. 166; Scotten v Longfellow, 40 Ind. 23; Stevens v. Fassett, 27 Me. 283; Hewlett v. Cruchley, 5 Taunt. 277; Kendrick v. Cypert, 10 Humph. 295; McCarthy v. Kitchen, 59 Ind. 500; Ravenga v. Mackintosh,2 B. & C. 693; Cole v. Curtis, 16 Minn. 203; Stewart v. Sonneborn, 98 U. S. 187. It is not necessary, nor is it customary to confine the mala fides of the prosecution to any particular character of mala fides, nor to any particular form or expression disclosing or representing it. It is sufficient that the instruction requires such conduct on the part of the prosecutor as legally excludes the presence of an honest belief in the guilt of the accused. The prosecutor must have an honest belief in the guilt of the accused, and he must have reasonable grounds for so believing. Vansickle v. Brown, 68 Mo. 627. Now, the eighth instruction required the jury to find that the prosecutor had no probable cause, and that he commenced or carried on the prosecution with a hostile desire to wrong and injure the accused. Under those circumstances the advice of counsel is of no avail. There being in truth no probable cause, the advice of counsel is a cloak to the malice implied in the purpose of the prosecution. If it was commenced or carried on with the hostile desire to injure and wrong the accused, there could be no honest belief in the guilt of the accused, there being no pretense of a probable cause outside of the advice of counsel.

It is an injury and wrong inflicted upon any one to subject him to the processes of the criminal law for the purpose of making him pay a debt or comply with any other behest of the civil law. Gabel v. Weisensee, 49 Tex. 131; s. c., 8 Cent. L. J. 347.

An abuse of the process of the law is evidence of malice and want of probable cause. Prough v. Entriken,11 Penn. St. 81; Page v. Cushing, 38 Maine 523; Gallaway v. Burr, 32 Mich. 335; Seiber v. Price, 26 Mich. 518; Alexander v. Harrison, 28 Mo. 265.

The court properly overruled the motion to compel plaintiff to elect on which count he would proceed. Each prosecution was in truth a complete thing in itself, resulting in a discharge of the accused. If he had been held over by the committing magistrate for indictment, then the proceeding before the magistrate and the indictment would have been one prosecution; there would appear no termination in his favor; no discharge between the two. Each indictment constituted a prosecution resulting in a discharge. The same is true of the proceedings in the court of criminal correction; an action lies for each. Knott v. Sargent, 125 Mass. 95.

Henderson & Shields for respondents.

The motion to compel plaintiff to elect should have been sustained. There was but one prosecution, beginning in the court of criminal correction, and ending in the final discharge on second indictment. All the proceedings were successive steps in the same matter. Cole v. Curtis, 16 Mich. 182, 196; Thomason v. DeMott, 18 How. Pr. 529; Pratt v. Page, 18 Wis. 338, 344; Moore v. Sauborin, 42 Mo. 490, 494.

The plaintiff's eighth instruction should not have been given. It practically tells the jury that if defendants told counsel all the facts and circumstances which they knew or by reasonable diligence could have found out, yet his advice on this truthful statement was no defense, because defendants were hostile to plaintiff in making such consultation. This is not the law. Malice alone is not sufficient to sustain the action. 2 Addison on Torts, 742, 743; Casperson v. Sproule, 39 Mo. 39; Callahan v. Caffarata, 39 Mo. 136; Mitchinson v. Cross, 58 Ill. 366; Besson v. Southard, 10 N. Y. 236. If the prosecutor states to counsel all the facts within his knowledge or that might have been known by reasonable diligence, and the counsel advises him that the offender is liable to a criminal prosecution, and he acts on the advise of counsel, then this is an absolute defense. Anderson v. Friend, 85 Ill. 135; 77 Ill. 164; Eastman v. Keasor, 44 N. H. 518; Collins v. Hayte, 50 Ill. 337; Ames v. Rathbun, 55 Barb. 194; Ross v. Innis, 35 Ill. 487; Cooper v. Utterbach, 37 Md. 282; Sappington v. Watson, 50 Mo. 83; Stevens v. Fassett, 27 Me. 266. His motive is immaterial. Flickinger v. Wagner, 46 Md. 603. If he make full statement of his case to his counsel, and receive his advice thereon, and act under and in pursuance of his advice, he may still not act in “good faith” in the prosecution, for after receiving the advice, he may become informed of facts which satisfy him that the accused is not guilty. Good faith in acting under the advice of counsel, is essential to the defense. Cole v. Curtis, 16 Minn. 182. This instruction does not present this idea at all. It says, “that such counsel was not consulted by them in good faith.” It matters not whether they consulted them in good faith, if the...