Sweeney v. Perney

• Court: Kansas Supreme Court
• Writing for the Court: SIMPSON, C.:
• Citation: Sweeney v. Perney, 40 Kan. 102, 19 P. 328 (Kan. 1888)
• Decision Date: 06 October 1888
• Parties: MICHAEL SWEENEY v. JOSEPH PERNEY

19 P. 328

40 Kan. 102

MICHAEL SWEENEY v. JOSEPH PERNEY

Supreme Court of Kansas

October 6, 1888

Error from Wabaunsee District County.

ACTION to recover damages for malicious prosecution. Trial at the June term, 1886, and judgment for the defendant Perney. The plaintiff Sweeney brings the case to this court. The opinion states the facts.

Judgment reversed and remanded.

John T Bradley, for plaintiff in error.

Geo. G Cornell, and J. F. Peffer, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This action was brought by Michael Sweeney against Joseph Perney, to recover damages for malicious prosecution. On the trial the jury found for the defendant; the plaintiff moved for a new trial; the motion was overruled; judgment was rendered against plaintiff, and he brings the case here for review. The record shows that Joseph Perney, as a road overseer, on the 1st day of July, 1885, made complaint in writing under oath before a justice of the peace, charging Michael Sweeney with, on the 15th day of April, 1885, stealing, taking and carrying away some stones, of the value of $ 10, belonging to Kaw township, Wabaunsee county, from a public road in that township. A warrant was issued by the justice of the peace on the complaint, and Sweeney was arrested and taken before the justice; then Sweeney made an affidavit for a change of venue from the justice, on the ground that the justice was prejudiced against him; the justice overruled the application, and forced Sweeney to trial; Perney prosecuted him, and the justice found Sweeney guilty, and sentenced him to pay a fine of ten dollars and costs, and to stand committed to the county jail until he paid the same. Sweeney appealed to the district court, and Perney again prosecuted him there. The case was tried by jury, and the jury found the defendant Sweeney was not guilty as charged; that the complaint was malicious and without probable cause; and that the name of the prosecuting witness was Joseph Perney. Thereupon, the court rendered judgment finding Sweeney not guilty, and taxing the costs of the criminal case to Perney.

There are many errors assigned in the petition and elaborated in the brief of counsel for the plaintiff in error.

I. The trial court refused to permit the plaintiff to give in evidence the transcript of the justice of the peace to show that Perney had testified against Sweeney in the criminal case. The complaint had been introduced showing that the defendant in error had sworn to it, and had thus instituted the criminal proceedings. The trial court had permitted proof by the clerk of the district court, that at the trial in the district court, Perney was the prosecuting witness, and was present at the trial. We think that the plaintiff in error had a right to show that at the original trial Perney was a witness, and testified against the plaintiff in error; and the transcript of the justice was the best evidence of that fact, as he is required by law (Justices' Code, § 188) to enter upon his docket the names of all witnesses sworn, and at whose request they are sworn. It was material that the plaintiff in error should prove that the prosecution was commenced and conducted by the defendant in error; and the fact that Perney was a witness against him on the trial was an important one, and he should have had all the benefit of it.

II. The trial court refused to permit the plaintiff to read that part of the judgment in the district court that found that the complaint was malicious and without probable cause, and that the name of the prosecuting witness was Joseph Perney; and this is insisted upon as error. The judgment of acquittal is admitted, for the reason that it is the only possible way to prove the fact of acquittal, and because it is a public record embodying the result of a judicial investigation as to the question of the guilt or innocence of the accused, a result that cannot be arrived at or determined in any other manner. The record of such an investigation can only be used to prove the fact that such a judgment was rendered, for the reasons given above, but when it is sought to use it as evidence of ulterior facts, then it at once becomes apparent that it is sought to bind a litigant to recitations in a record to which he was not a party, and about which determination he had no voice or direction. There is a very great conflict of authority on the question as to whether the record of acquittal is or is not prima facie evidence of a want of probable cause in actions of this character. In the affirmative, see the cases of Secor v Babcock, 2 Johns. 203; Johnston v. Martin, 2 Murphy 248; Bostick v. Rutherford, 4 Hawks 83; Smith v. Ege, 52 Pa. 419. To the contrary, see Stone v. Crocker, 24 Pick. 81; Scott v. Simpson, 1 Sandf. 601; Israel v. Brooks, 23 Ill. 575. There may be many other cases, but these are sufficient to show the conflict of authority on this question. So it is disputed as to whether or not proof of arrest, committal and indictment is prima facie proof of probable cause. On one side, see Ricord v. Cent. Pac. Rld. Co., 15 Nev. 167. On the other, see Womack v. Circle, 29 Gratt. 192. We have found no case that goes to a greater extent than holding that the judgment of acquittal is prima facie proof of a want of probable cause; and it appears that the cases that hold the contrary are the most logical. It must appear that the prosecution is at an end. The record of a criminal suit is admitted in a civil action to...