Waldron v. Sperry
| Decision Date | 11 April 1903 |
| Citation | 44 S.E. 283,53 W.Va. 116 |
| Parties | WALDRON v. SPERRY. |
| Court | West Virginia Supreme Court |
Submitted February 2, 1903.
Syllabus by the Court.
1. On complaint and information on oath of S., charging W. with a felony, the justice before whom the complaint was made issued his warrant in due form for the arrest of W. The warrant was placed in the hands of an officer, who was authorized to execute it. W. was arrested thereon, and brought before said justice for examination on said complaint. S. was the only witness summoned on behalf of the state. He failed to appear. For that reason the examination was, by the justice continued until the next day. S. again failed to appear although he was sent for. The complaint and warrant were then dismissed by the justice, without having heard any evidence whatever, and the accused was discharged from custody. W. has not been in any way further prosecuted on said charge. Held, the dismissal of the complaint and warrant and discharge of W. as aforesaid are a sufficient ending and termination of that particular prosecution to entitle W. to maintain his action for malicious prosecution, so far as that element of his case is concerned.
Error to Circuit Court, McDowell County; J. M. Sanders, Judge.
Action by John W. Waldron against J. J. Sperry. Judgment for plaintiff. Defendant brings error. Affirmed.
T. F Henritze, for plaintiff in error.
Strother Taylor & STROTHER, for defendant in error.
On the 4th day of October, 1900, John W. Waldron commenced his action in the circuit court of McDowell county against J. J Sperry for an alleged malicious prosecution. At the October rules following he filed his declaration, containing two counts, and laying his damages therein at $10,000. On the 3d day of September, 1901, plaintiff caused notice to be served on the defendant that he would, at that September term of the court, demand and insist upon a trial of the said action. On the 12th day of September, 1901, the defendant demurred to the said declaration, which demurrer was overruled, and thereupon the defendant entered his plea of not guilty, and, issue being joined thereon, he moved the court to continue the trial of the action until the next term, and in support of his motion tendered and filed his own and the affidavit of Dr. G. W. L. Sandford, who was also examined in open court, touching the matters referred to in his affidavit. The court overruled the said motion, and the defendant excepted. Thereupon a jury was impaneled and sworn in the case; the evidence adduced by the plaintiff was heard, the defendant offering none; and a verdict was rendered in favor of the plaintiff against the defendant for $500. The defendant then moved the court to set aside said verdict, and grant him a new trial of the action; but the court refused so to do, and the defendant again excepted, whereupon the court entered judgment upon the verdict for said $500 against the defendant, who then moved the court to arrest said judgment, which motion was also overruled, and the defendant again excepted. The defendant also excepted to the refusal of the court to give to the jury three several instructions, Nos. 1, 4, and 5, asked for by him, and also excepted to the giving of an instruction asked for by the plaintiff, all of which are hereinafter referred to. The defendant, during the trial, also excepted to the action of the court in admitting as evidence a certain warrant of arrest, with the return of the execution thereof indorsed thereon, and an entry in the docket of the justice, made after the return of said warrant. All of the evidence adduced on the trial, with the several rulings of the court, excepted to as aforesaid, appear by bills of exception.
Dr. Sandford's affidavit, sworn to on the 10th day of September, 1901, before T. F. Henritze, notary public, states, in substance, that he was the physician of defendant, who was then suffering from general nervous debility; that defendant's condition was such that he was physically unable to undergo the fatigue and excitement incident to a trial; and that he had been waiting on the defendant for about two weeks. Being cross-examined, Sandford further stated that he had seen Sperry since making the affidavit; that his condition was slightly better; that defendant had nervous debility, produced by alcoholism; that on the evening before witness had seen Sperry walking around in his yard at home, with a gun, shooting bull bats; that his then condition would not exist if he had not been drinking; that he was in the habit of taking periodical sprees; that his condition was such that he might ride to town (meaning the county seat); that the ride would be beneficial to him; and that he could appear in court without detriment to himself, but that he did not think that defendant could be cross-examined.
Defendant's affidavit, sworn to before said Henritze on the 11th day of September, 1901, states substantially that he was not ready for the trial of the action at that term, for the reason that he was physically unable to attend the trial and testify; that his testimony in the case was material to his defense; that he could not prove the same facts which he would testify to by any other witness that he knew of; that T.
F. Henritze, one of his counsel in the action, had, at his request, soon after the institution of the suit, written to R. C. McClaugherty, an attorney at Blufield, to employ him as co-counsel in the case; that defendant had relied upon said McClaugherty as his attorney in the case; that he had been advised by his physician that the excitement and fatigue incident to a trial of the case would be highly injurious to him, owing to his then physical condition; that said McClaugherty was not in attendance upon the court; that he had been informed on the first day of the then term that McClaugherty was not in a condition physically to properly try the case; that McClaugherty lived at Blufield, 36 miles away; that all of the correspondence in regard to the suit had been carried on with McClaugherty by his other attorney, T. F. Henritze; that defendant had on that morning made the trip from his home to Welch, a distance of about one mile, and that he was then able to make such trip again, but that the excitement and anxiety incident to attending the trial and testifying in it, he was advised by his physician, would very much retard his recovery, and perhaps completely prostrate him. Plaintiff asked leave to cross-examine said Sperry upon said affidavit, but he did not appear in court to be so examined.
This evidence shows that defendant had brought upon himself his then nervous debility; and he fails to show that his case could not be safely tried without his own evidence. It also appears that he then had counsel in court, attending to his interests in the case. Defendant did not make out a proper case for a continuance. Tompkins v. Burgess, 2 W. Va. 187; Dimmey v. Railroad Co., 27 W.Va. 32, 55 Am. Rep. 292; Rossett v. Gardner and Richardson, 3 W. Va. 531. The motion, therefore, was properly overruled.
The declaration contains all of the requisites required by our adjudicated cases of this character. Appellant has not specified any defects therein. We find none. The demurrer thereto was also properly overruled.
The said warrant, as the evidence shows, was issued on the 12th day of September, 1900, in McDowell county, by W. G. Hunt, then a justice in and for said county, duly qualified and acting as such, upon the complaint and information on oath of said J. J. Sperry before said justice, and recites that John W. Waldron, on the 11th day of September, 1900, in the said county, one Smith & Wesson revolver of the value of $24, of the goods and chattels of J. J. Sperry, then and there being found, did steal, take, and carry away. The warrant is directed to the sheriff, "or any other constable of said county," and required the officer forthwithto apprehend and bring before that or some other justice of said county the body of said Waldron to answer the said complaint, and to be further dealt with according to law. The return indorsed on said warrant shows that A. C. Hufford, deputy for W. W. Whyte, sheriff, executed the warrant by arresting J. W. Waldron, therein named, and delivering him to W. G. Hunt, Justice of the Peace of McDowell county, W. Va., on the 13th day of September, 1900. The entry in the docket of the justice recites that on information on oath of J. J. Sperry on the 12th day of September, 1900, in the said county of McDowell and state of West Virginia, a warrant was issued for the arrest of John W. Waldron, for this, to wit, that he one Smith & Wesson revolver of the value of $24, of the goods and chattels of J. J. Sperry, then and there being found, did unlawfully and feloniously steal, take, and carry away, and that the said warrant was duly served and returned before said justice on the 13th day of September, 1900, the said Waldron having been arrested by A. C. Hufford, and brought before the justice under said warrant on said 13th day of September, 1900; that thereupon said case was continued until the 14th day of September, 1900, for trial, said Waldron being left in the custody of said Hufford, a deputy sheriff, during said time; and that on said 14th day of September, 1900, said Waldron appeared, and announced himself ready for and demanded a trial, and, no witness appearing for the state, the case was dismissed without trial. We see no reason why said warrant, return thereon, and entry of the justice dismissing said prosecution should not have been received by the court as evidence along with the other testimony adduced. The court did not err in admitting them.
It was proved that A. C. Hufford arrested Waldron upon...
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