Stocking v. Howard

• Decision Date: 31 October 1880
• Citation: 73 Mo. 25
• Parties: STOCKING, Appellant, v. HOWARD.
• Court: Missouri Supreme Court

73 Mo. 25

STOCKING, Appellant,

v.HOWARD.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

REVERSED.

Vories & Hill for appellan

H. M. Ramey for respondent.

HENRY, J.

This is an action for malicious prosecution. A demurrer to the petition was sustained, and from the judgment thereon, plaintiff has appealed. The ground on which the demurrer was sustained was that the affidavit of the defendant, upon which the warrant issued for the arrest of the plaintiff herein, did not sufficiently charge a crime. The affidavit charged that the plaintiff herein, at St. Joseph, Missouri, had procured the signature of defendant, as indorser of a note for $1,000, payable to A. Beattie, by falsely and fraudulently representing to him that plaintiff was worth $1,200 in personal property, consisting of, etc., and that if defendant would indorse said note he would give him a bill of sale of said property, and that defendant was induced thereby to, and did indorse said note, and that plaintiff had not given him the bill of sale, but had refused to do so, and had transferred and secreted said property, with intent to cheat defendant, etc.

The affidavit did not state facts which constitute the crime of procuring the signature of affiant by false pretenses. The statement that plaintiff “had secreted and transferred the property,” was a virtual admission that he had the property of which he represented himself to be the owner, and the promise to give a bill of sale of the property, notwithstanding the subsequent refusal to do so, was not a false pretense. “The false pretense, under the statute, must relate to a past event or existing fact.” 2 Wharton's Crim. Law, 1173; The State v. Evers, 49 Mo. 544.

But it does not follow that defendant is not amenable for the wrong done, in an action for malicious prosecution. Prof. Greenleaf, in his work on evidence, 2 volume, section 449, says, on this subject: “Nor is it material that the plaintiff was prosecuted by an insufficient process, or before a court not having jurisdiction of the matter, for a bad indictment may serve all the purposes of malice as well as a good one.” In Pippet v. Hearn, 5 Barn. & Ald. 635, it was held that: “Where a man maliciously prefers an indictment against another for a crime, he is liable to an action for it, although the indictment be defective; for, in either case, whether the indictment be good or bad, the plaintiff is equally subjected to the disgrace of it, and put to the same expense in defending himself against it.” The same doctrine was announced in Savil v. Roberts, 1 Salk. 14. The court in Chambers v. Robinson, 1 Stra. 691, observes: “A bad indictment serves all the purposes of malice by putting the party to expense and exposing him, but it serves no purpose of justice in bringing the party to...