Swick v. Bassell.

Decision Date02 November 1915
Docket NumberNo. 2876.,2876.
Citation77 W.Va. 78
PartiesSwick v. Bassell.
CourtWest Virginia Supreme Court

1. Indictment and Information Offense Charged Embezzlement Larceny.

On a common law indictment for larceny, evidence of embezzlement is admissible and, on it, there may be a conviction of the latter

offense, if the evidence is sufficient, (p. 82).

2. Malicious Prosecution Probable Cause Evidence.

If a criminal prosecution, as instituted, was not maintainable because commenced in the wrong county or the wrong court, but the facts and circumstances known to the prosecutor constituted probable cause for prosecution in the proper county or court, they are admissible in an action for malicious prosecution, brought by the accused, after termination of the criminal proceeding, to prove the existence of probable cause, (p. 81).

3. Same Instructions Probable Cause Evidence.

In an action for malicious prosecution on a charge of larceny, evidence of embezzlement of the property alleged to have been stolen, which may have occurred in a county other than the one in which the criminal proceeding was instituted, is admissible, and it is reversible error, after admission thereof, to give instructions denying to it any legal effect, (p. 82).

4. Same Probable Cause Instructions.

Instructions to the jury in such a case, telling them they may ignore or disregard a fact which constitutes an element of probable cause or that such fact alone does not amount to probable cause, are erroneous and misleading, (p. 83).

(Williams and Mason, Judges, absent.)

Error to Circuit Court, Harrison County. 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, for plaintiff in error.

Harvey W. Harmer and J. Howard Holt, for defendant in error.

Poffenbarger, Judge:

On this writ of error to a judgment for the sum of $1,200.00, 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 wras given at Cumberland, Maryland, 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 paraphernalia were taken from Clarksburg to Bassell's farm. The articles alleged to have been stolen wrere 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 wrere in the trunk and box and assented to his taking them awray. This Bassell emphatically denies. Swuck'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 Dec, 1911, Swick replied on the 19th day of Dec, 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 $115.00 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. Swdek 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 sec. 19, eh. 145 of the Code, 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 thirty 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 knownngly permitted Swiek 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 prop crty In...

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1 cases
  • Swick v. Bassell
    • United States
    • West Virginia Supreme Court
    • 2 d2 Novembro d2 1915

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