Swick v. Bassell
| Decision Date | 02 November 1915 |
| Docket Number | (No. 2876.) |
| Citation | 77 W.Va. 78,87 S.E. 176 |
| Court | West Virginia Supreme Court |
| Parties | SWICK. v. BASSELL |
Rehearing Denied Dec. 17, 1915.
(Syllabus by the Court.)
Action by 'Dillon L. Swick against Alvin D. Bassell. Judgment for plaintiff, and defendant brings error. Reversed, remanded, and new trial awarded.
Will E. Morris and E. D. Lewis, both of Clarksburg, for plaintiff in error.
Harvey W. Harmer, of Clarksburg, and J. Howard Holt, of Moundsville, for defendant in error.
POFFENBARGER J. On this writ of error to a judgment for the sum of $1,200, rendered on the verdict of a jury, in an action for malicious prosecution, the only meritorious inquiries presented pertain to rulings of the court respecting the giving of several instructions for the plaintiff and the refusal of one asked for by the defendant.
On a complaint charging the plaintiff with the larceny of a pair of leggings, a pair of riding spurs, two pony blankets, and a cane, made by the defendant and filed with a justice of the peace, a warrant was issued, under which the plaintiff was arrested, on the 24th day of January, 1912. On the hearing by the justice he was acquitted and discharged. The property in question belonged to the defendant and was in the possession of the plaintiff at the time of the complaint and arrest. After his arrest he produced and returned it. Whether it went into his possession with the knowledge and consent of the defendant was one of the issues in the case. Another was the intention with which he had obtained possession thereof. Bassell was a horse fancier and owned several valuable animals, among which were some ponies. Swick was a horse trainer. They conceived the idea of conducting a horse show, one feature of which was diving by a pony from a ladder into a tank of water. Bassell furnished the horses and Swick the ladder, and the tank seems to have been subsequently procured. Swick had no money, and Bassell financed the operations. One unsuccessful exhibition was given at Cumberland, Md., and another at Clarksburg. At the close of the Clarksburg exhibition, they decided to quit for that year, and possibly for all time. The horses and para-phemalla were taken from Clarksburg to Bassell's farm. The articles alleged to have been stolen were in a box and a trunk, which Swick took away with him when he left Bassell's place for his home in Barbour county. He says Bassell knew they were in the trunk and box and assented to his taking them away. This Bassell emphatically denies. Swick's explanation is that the articles had been packed at Clarksburg by a servant, one Pau, who was not at Bassell's at the time at which Swick left, and who had the key to the box and trunk. Some of Swick's things were left at Bassell's—the ladder, a saddle, and some other articles. Bassell says he missed his property some time after Swick had gone, and that, after an unsuccessful search for them, he wrote Swick a letter in which he demanded the return thereof, on the assumption that he had them. To this letter, written on the 9th day of December, 1911, Swick replied on the 19th day of December, 1911, but did not mention the articles. Bassell's letter had covered a good deal of ground and, among other things, he had requested Swick to come back and work for him. He also claimed to have loaned Swick $115 with which to pay purchase money of, or indebtedness on, his house. Swick utterly denied the indebtedness, charged Bassell with failure to pay bills and other misconduct, and flatly refused to return. On the 10th day of January, 1912, Bassell wrote him again, demanding the return of the articles and threatening criminal prosecution on his failure to return them. He says he received no reply to this letter. Swick swore he had replied to it, but was unable to produce any copy of his alleged letter, and the court permitted him to testify that in it he had expressed his willingness to return Bassell's property on Bassell's return of his.
Assuming the tendency of the evidence to sustain them, the defendant interposed two grounds of defense: (1) Common-law larceny of the articles, a taking thereof, without his knowledge or consent, against his will, and with criminal intent; and (2) proof of a prima facie case of embezzlement, made out under section 19, c. 145, of the Code (sec. 5210), declaring a presumption of guilt of the offense, upon proof of failure of an agent to restore or account for the principal's property in his possession within 30 days after a proper demand therefor has been made.
Several of the instructions given for the plaintiff fairly submitted the inquiry as to whether there had been a bailment of the property; in other words, whether Bassell had knowingly permitted Swick to take it with him. These wholly ignored the evidence of embezzlement. This omission the argument for the defendant excuses on the ground that the embezzlement, if any, did not occur in the county in which the prosecution was instituted, Harrison, because Swick had the property in Barbour county when the demand for its return was made. This raises novel questions. Where was the offense committed? If one was committed in Barbour county, and the prosecution in Harrison would have failed only because commenced in the wrong county, was there probable cause?
Section 19, c. 145, Code (ser. sec. 5210), declares that, if, in the prosecution of an agent for embezzlement it appears that property of the principal is unlawfully withheld, and the agent has failed or refused...
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