Wilson v. Lapham
| Decision Date | 23 October 1923 |
| Docket Number | 35446 |
| Citation | 195 N.W. 235,196 Iowa 745 |
| Parties | MAX WILSON, Appellant, v. J. W. LAPHAM, Appellee |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--C. C. HAMILTON, Judge.
PLAINTIFF appeals from a judgment for costs entered against him, upon a directed verdict in an action to recover damages for malicious prosecution and false imprisonment. The facts are fully stated in the opinion.
Affirmed.
C. A Plank, for appellant.
Burgess Gill, Sammis & Boylan, for appellee.
I.
Appellant pleaded his cause of action in two counts,--one for malicious prosecution and the other for false imprisonment. The defenses interposed to the charge of malicious prosecution were a general denial and justification based upon the advice of counsel. As a defense to the charge of false imprisonment, appellee pleaded that the prosecution was instigated by him with probable cause, upon the advice of counsel, and in the good-faith belief of the appellant's guilt, and that the arrest and detention of appellant were by an officer authorized to make an arrest, and under a warrant issued by a magistrate having jurisdiction to issue same, which was regular upon its face.
There is no material or substantial conflict in the evidence, from which it appears that, on August 26, 1921, about 10:40 P.M., Walter A. Lapham, brother of appellee, was shot and killed by a strange man, who was attempting to effect a robbery. The tragedy occurred in the office of the deceased in a garage which he was operating in Sioux City, in the presence of an employee by the name of Harmon. The robber entered the office through an inner door, through which the office communicated with the salesroom, and commanded the deceased and Harmon to put up their hands, and later to remove their diamond rings and lay them upon the counter. Harmon complied with this demand, but Lapham did not do so promptly, but inquired of the robber if he was "serious" or "kidding." Deceased approached the robber so closely that the latter shot,--killing Lapham instantly. The robber wore a blue shirt, without coat or waistcoat, and brown trousers. Harmon described him as a man with dark hair, peculiarly shaped forehead, and bulging eyes, which revealed an unusual amount of white; and said he was about the size and appearance of appellant. Appellant had been at one time employed by deceased in his garage; but, at the time of the tragedy, was engaged in an automobile repair business for himself at Hawarden, a near-by place. Appellee is about 35 years of age, an attorney at law, and, at the time, was postmaster at Chanute, Kansas. He arrived in Sioux City, in response to a telegram notifying him of his brother's death, about two days after the shooting occurred. A state agent, the county attorney's office, and an assistant attorney-general, who resided at Sioux City, and other officers instituted an immediate investigation and search for the robber. Harmon informed them that the robber, whose face below the eyes was concealed by a mask, strongly resembled appellant, noting the peculiar forehead, the bulging eyes, and the appearance of more than the ordinary amount of white on the eyeball, and gave it as his belief that the appellant was the murderer. The only other fact disclosed by the investigation tending to corroborate the statements and belief of Harmon was that appellant was in Sioux City on the evening of the tragedy. Appellee does not appear to have made any particular independent investigation, but relied upon the information furnished him by the county attorney, the state agent, and other officers, as to the evidence against appellant. Appellee was not acquainted with appellant, but saw him before the arrest was made. Harmon, with the state agent, went to Hawarden and observed appellant, for the purpose of confirming his identification of him at the time of the murder. Harmon was at no time positive of his identification of appellant, but insisted upon the strong resemblance between the two men in the particulars stated, and also in size and general appearance.
The warrant issued by the magistrate upon the information signed and sworn to by appellee was delivered to the state agent, who, in company with the assistant county attorney, arrested appellant at Hawarden, and took him to Sioux City, where he was placed in jail and kept in custody for several days. During the time he was in custody, he was frequently questioned and cross-examined as to his past life, his whereabouts at the time of the tragedy, and his possible guilt of the crime. A blue shirt found in the room in which appellant slept was seized at the time of the arrest, and taken to Sioux City by the state agent. Appellant also alleged in his petition that the officers refused to permit him to consult an attorney privately, and that they compelled him to put on his blue shirt, go to the garage, and assume the role of the robber, and to re-enact the robbery. A handkerchief was also tied over his face, concealing the lower portion thereof. Harmon and appellee were present, and observed the demonstration. Harmon then observed that appellant was probably larger and taller than the robber, although he was not at once discharged. On the Monday morning following his arrest, he was taken to the office of the county attorney, and informed that he was released. The prosecution was voluntarily dismissed by the county attorney, without a preliminary examination, and without appellant's having been taken before the magistrate. The evidence further shows without conflict that appellee was informed by the county attorney, the state agent, and other officers, of all the facts known to them before the arrest and recited in the record. He declined to file an information until he consulted the attorney who had been employed to look after the administration of his brother's estate. The attorney was a witness in his behalf, and testified to the information given him by appellee, and that he advised him that it was his duty to institute the prosecution. Appellee testified that he acted without malice, under the belief that appellant was guilty, and in reliance upon the advice of the county attorney and the attorney consulted by him, to whom he made a full disclosure of all the facts known to him.
To entitle a plaintiff to recover in an action for malicious prosecution, the burden is upon him to show (1) the previous prosecution; (2) the instigation or procurement thereof by the defendant; (3) the termination thereof by the acquittal or discharge of the plaintiff; (4) want of probable cause; and (5) that the prosecution was malicious. White v. International Text Book Co., 156 Iowa 210, 136 N.W. 121; Pierce v. Doolittle, 130 Iowa 333, 106 N.W. 751. The instigation of the prosecution by the appellee is admitted. Appellant, as stated, was discharged upon the voluntary dismissal of the prosecution by the county attorney. This constituted a termination thereof, within the meaning of that term as used in actions for malicious prosecution. Farmer v. Norton, 129 Iowa 88, 105 N.W. 371; White v. International Text Book Co., supra. A discharge or acquittal by a magistrate is prima-facie evidence that the prosecution was instituted without probable cause, and casts the burden upon the defendant of proving to the contrary. Hidy v. Murray, 101 Iowa 65, 69 N.W. 1138; Krehbiel v. Henkle, 178 Iowa 770, 160 N.W. 211. The presumption arising from the discharge or acquittal of the defendant by the magistrate is not conclusive, but, ordinarily at least, would raise a question of fact, to be submitted to the jury. Hidy v. Murray, supra.
Appellant was not acquitted by the magistrate upon a hearing, nor was any evidence offered against him. Whether the voluntary dismissal of the prosecution by the county attorney would make out a prima-facie case in favor of the plaintiff, we need not discuss. The absence of any conflict in the evidence on the issues of malice and want of probable cause imposed upon the court the duty of determining these as questions of law. Jenkins v. Gilligan, 131 Iowa 176, 108 N.W. 237; Erb v. German Am. Ins. Co., 112 Iowa 357, 83 N.W. 1053; Parker v. Parker, 102 Iowa 500, 71 N.W. 421. Malice may be inferred from the want of probable cause, but such inference is not a necessary one. Shaul v. Brown, 28 Iowa 37; Erb v. German Am. Ins. Co., supra; Jenkins v. Gilligan, supra; Pierce v. Doolittle, supra; Walker v. Camp, 63 Iowa 627, 19 N.W. 802. To constitute malice, there must have been an improper motive or purpose. Ill will or hatred are not, however, necessary ingredients thereof. Legal malice may exist without either. The accusation of a crime, without probable cause, followed by an arrest and the consequent public exposure, is a matter of such a serious character as to justify an inference of malice therefrom. Jenkins v. Gilligan, supra; White v. International Text Book Co., supra; Gabriel v. McMullin, 127 Iowa 426, 103 N.W. 355.
If one about to instigate a criminal prosecution consults an attorney, and makes a full and fair statement of the facts to him, and such attorney advises a criminal prosecution based upon such a statement, his advice may be relied upon as a defense to a subsequent action for malicious prosecution. Necker v. Bates, 118 Iowa 545, 92 N.W. 667; Wilson v. Thurlow, 156 Iowa 656, 137 N.W. 956; White v. International Text Book Co., 144 Iowa 92, 121 N.W. 1104; Parker v. Parker, supra; Pierce v. Doolittle, supra. We said, in Wilson v. Thurlow, supra, that:
"Advice of an attorney, to constitute a good defense, must be based on a full and fair statement of the facts within defendant's knowledge, and the advice must have been...
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