Stone v. Powell

• Decision Date: 30 September 1838
• Citation: 5 Mo. 435
• Parties: STONE v. POWELL.
• Court: Missouri Supreme Court

5 Mo. 435

STONE

v.POWELL.

Supreme Court of Missouri.

September Term, 1838.

APPEAL FROM THE CIRCUIT COURT OF PETTIS COUNTY.

ADAMS, for Plaintiff.

The following points and authorities are relied upon by the plaintiff to reverse the judgment of the Circuit Court: 1. That the court erred in rejecting the transcript of the justice of the peace. 1 Stark. 414; side p. ibid. 431, 420-2; King v. Morris, Strange, 909; (this last case is in point); 2 Stark. 908-9; 3 Stark. 1137, 1601-3; 5 Johns. p. 1, Lewis v. Few; see p. 15 of same case, and ref.; 8 Johns. 25, Rodman v. Forman's Adm'rs; 8 Johns. 455, Brooks v. Bemiss; 9 Johns. 82, Page v. Wood; 20 Johns. 350, McKinley v. Rob; 2 Salkeld, 660; 2 Mo. R. 135, Martin v. Miller, and p. 212 of same.

2. That the court erred in rejecting the special plea of the defendant as evidence to prove the speaking of the slanderous words. See 15 Mass. Rep. 48, Jackson v. Stepson; 1 Pickering, p. 1, Alderman v. French.

ENGLISH, for Defendant.

TOMPKINS, J.

Stone brought his action for a malicious prosecution against Powell. The plaintiff suffered a non-suit, and then, for reasons assigned, moved to set aside his non-suit. His motion being overruled, he appealed to this court. The bill of exceptions shows that the plaintiff offered in evidence on the trial of the cause, a transcript from the docket of William Taylor, a justice of the peace of Howard county, duly certified. He then introduced the justice himself to prove the transcript. This transcript was rejected by the court. The plaintiff then offered to read in evidence a plea of justification, which the defendant had filed to the declaration, and to which the plaintiff had filed a demurrer that had been sustained by the court. The Circuit Court refused to allow this plea to be read in evidence to prove the words charged by the plaintiff in the declaration to have been spoken by the defendant. Powell went before the justice of the peace, and made oath that one ____ Stone found and converted to his own use about fifty dollars of the money of him, Powell, and that he believed that Stone intended to conceal and convert the same to his own use feloniously. The justice then issued his warrant against one ____ Stone, Under the authority of this warrant the officer arrested one Jos. J. Stone and brought him before the justice. On the day set for the hearing of the charge against Stone, no prosecutor appearing, he was discharged for want of evidence. The plaintiff then offered to prove that he, Jos. J. Stone, was the same ____ Stone mentioned in the transcript, and against whom the said Powell made oath, as mentioned in the transcript from the justice's docket, and the court refused to permit the transcript, with this evidence, to go to the jury. These acts of the court, viz: refusing to permit the transcript, with explanatory evidence, to be read to the jury, and the special plea in bar to be read, are assigned for error.

The matter which the plaintiff in this action was bound to prove is, that Powell made an affidavit before the justice of the peace, the legal consequence of which was, that the justice issued his warrant, and that he, the plaintiff, was apprehended. Had the plaintiff been guilty of the charge, it would be trifling with justice to suppose that he ought to escape, because his given name was unknown to Powell. It became his duty so to describe the man that he might be found and subjected to punishment, if guilty; if innocent, he ought, though his given name was not inserted in the affidavit of Powell or the warrant of the justice, to have his remedy for the malicious prosecution, if malicious it be. Stone does not found his action here on the record; but the record is produced as evidence that he was the person prosecuted; and there is no manner of impropriety in...