Williams v. Vanmeter

• Decision Date: 31 January 1844
• Citation: 8 Mo. 339
• Parties: WILLIAMS v. VANMETER.
• Court: Missouri Supreme Court

8 Mo. 339

WILLIAMS

v.VANMETER.

Supreme Court of Missouri.

January Term, 1844.

ERROR TO COOPER CIRCUIT COURT.

LEONARD, RICHARDSON and ADAMS, for Plaintiff. 1. There was a manifest variance between the warrant produced in evidence and the one set forth and described in the declaration, and the warrant, therefore, ought to have been excluded from the jury. 2. Where a party introduces evidence of the conversations of his adversary, he makes the whole conversation evidence. See Carver v. Tracy, 3 Johns. R. 427; Fenner v. Lewis, 10 Johns. R. 38; Credit v. Brown, 10 Johns. R. 365; Wailing v. Toll, 9 Johns. R. 141; 7 Mo. R. 348.

3. It devolved on the plaintiff to prove both malice and the want of probable cause, and the court erred in refusing an instruction to that effect. 2 Starkie; 6 Mo. R. 42; 2 Tucker's Com. 64; 4 Bur. 1971. 4. The court had no right to instruct the jury that the acquittal of the plaintiff was presumptive evidence of the want of probable cause. 2 Starkie, 682, and note G; 19 Cond. Eng. Com. L. R. 47; 2 Cond. Eng. Com. L. R. 56, 195.

HAYDEN and MILLER, for Defendant. 1. The court very properly overruled the motion of defendant to strike out the second count. See 2 Chitty, 610, and note d; Digest of 1835, p. 463, § 17. 2. The court very properly excluded the testimony offered by defendant, as to what witness or others may have said to defendant. See 1 Starkie, 60, 61. 3. The court properly overruled the objection to the introduction of the writ and justice's docket, offered by plaintiff in evidence. See 4 Bibb, 209. 4. The court properly gave instructions asked by plaintiff, and overruled those asked by defendant. 5. The court properly overruled the motions for a new trial, and in arrest of judgment.

SCOTT, J.

This was an action for a malicious prosecution, instituted by Vanmeter against Williams, in which Vanmeter had a verdict and judgment. It is deemed unnecessary to set out the various counts in the declaration, as the point made by the defendant below (Williams), in relation to the refusal of the court to strike out the second count, was abandoned on the argument of the cause. On the trial in the court below, the plaintiff offered in evidence a warrant issued by J. N. Laurie, a justice of the peace, directed to the constable of Boonville city, reciting, that whereas, information, on oath, had been given to him by F. A. Williams, that Robert Vanmeter, an able-bodied man, who, not having wherewithal to support himself, is found loitering about, and commanding him to take the body of the said Vanmeter, and bring him before the justice, to be dealt with according to law. The said Laurie was then introduced as a witness, who testified, that Williams, at the time the warrant was issued, asked him if he had ever examined the vagrant law? to which the witness answered, he had not; that witness and Williams then examined the statute reative to vagrancy, and Williams inquired of the witness what he thought of the plaintiff, Vanmeter, and if he was not subject to said law? Witness answered said inquiry, but the court would not permit the witness to state what his answer was, to which the counsel for the defendant excepted. The witness then testified, that after he had returned an answer to Williams' question, Williams put his finger on the first section of the vagrant act, and observed, “I give the information.”

At the instance of the plaintiff below, the court gave the following instructions: 1. That if the jury believe, from the evidence that the prosecution by defendant of the plaintiff was without probable cause, then they may infer that the prosecution was malicious, and if they so find the facts, they ought to find for the plaintiff. 2. That the discharge of the plaintiff, by the examining magistrate, is presumptive evidence of want of probable cause. To these instructions the defendant excepted.

The defendant then asked the following instructions: 1. That unless the jury believe that the defendant was instigated by malice, and also, that there was no probable cause for the prosecution, that then they must find for the defendant. 2. That in this case it is not necessary to prove that the plaintiff was a vagrant, and if there was any probable cause for the prosecution, they must find for the defendant. 3. That it is incumbent upon the plaintiff to prove both malice in the defendant, and a want of probable cause for the prosecution. 4. That the acquittal of the plaintiff, by the justice of the peace, is not sufficient in itself to show the want of probable cause. The court gave all these instructions but the third, the refusal to give which was excepted to by the defendant.

The first point made by the defendant was, that the court erred in admitting the warrant in evidence, as there was a variance between it and the declaration. The declaration alleges, that the defendant falsely and maliciously, and without any probable cause, charged the plaintiff with a certain offense punishable by law, to wit, vagrancy. It is not denied but that the allegation in the declaration is sufficient. But because the offense is not legally set forth in the warrant, therefore it is urged, that it should have been rejected as evidence. It is not perceived on what ground this exception is founded. The conduct of the defendant gives the cause of action; he lodges the information with the officer issuing the process; and because that officer commits an error, and insufficiently describes the offense in his warrant, is his conduct thereby palliated or justified? The injury to the accused is the same whether the warrant is legal or illegal. The defendant is the cause of the prosecution, and will he be heard to say, that although he did all he could in furtherance of it, yet as the officer erred in describing the offense for which the prosecution was instituted, is he therefore excused? If an information of one offense was given, and a warrant issued for another offense entirely different, and a suit was instituted for a malicious prosecution of the offense described in the warrant, it would fail, as it would not appear that the prosecutor had given the information which caused the issuing of the process. But that is not this case. It sufficiently appears that the warrant was intended to arrest the plaintiff for the offense communicated by the defendant, and because it is not legally set forth, it cannot avail him. Miller v. Brown, 3 Mo. R. 127.

The refusal of the court to give the third instruction asked by the defendant is also assigned for error. It cannot be denied but that instruction asserted a correct legal principle. In an action for a malicious prosecution, the plaintiff must show a want of probable cause, and malice either express or implied, in the defendant. Malice may be inferred from the want of probable cause but the want of probable cause cannot be inferred from malice, however rancorous. The instruction might have been given, but inasmuch as the principle it asserted had been announced to the jury as law in two previous instructions, the court was under no obligation to declare it a third time. ^(a)

It was contended by the defendant, that the second instruction given at the...