Womack v. Circle

• Decision Date: 20 November 1879
• Citation: 73 Va. 324
• Parties: WOMACK v. CIRCLE.
• Court: Virginia Supreme Court

73 Va. 324

WOMACK v. CIRCLE.

Supreme Court of Appeals of Virginia.

November 20, 1879

In an action for a malicious prosecution, the judgment of the justice before whom the plaintiff C was brought upon the complaint of the defendant W, that C had attempted to bribe H to burn W's property, requiring C to give security for her good behavior, though upon appeal the judgment of the justice is reversed and C discharged, is conclusive evidence of probable cause for the prosecution, unless W knew the testimony before the justice was false.

This is a sequel to the case of Womack v. Circle, reported in 29 Gratt. 192. The cause came on again to be tried in the circuit court of Botetourt county in April, 1878, when there was a judgment in favor of the plaintiff for $500, and a writ of error to this court. There seems to have been no conflict of the evidence, and it is given by Judge Anderson in his opinion. The only material question in the cause is whether the judgment of the justice, which was upon appeal reversed, was conclusive or only prima facie evidence of probable cause for the proceedings by the defendant against the plaintiff.

After the evidence had been introduced the defendant asked for four instructions to the jury; only two of which need be given. These the court refused to give, and gave an instruction in lieu of the second instruction asked by the defendant. These instructions are as follows:

I.

If the jury shall be satisfied from the evidence that Sallie Ailstock gave information to the defendant, William W Womack, that Margaret Circle and Charles Circle had attempted to bribe Hannah Scott to burn defendant's wheat stacks and that defendant, believing said information to be true went before Henry C. Douthat, a justice of the peace in the county of Botetourt, and made complaint that the plaintiff and her brother, Charles Circle, did attempt to bribe Hannah Scott to burn his wheat; and if the jury shall furthermore, from the evidence, be satisfied that said Henry C. Douthat, justice of the peace, caused said plaintiff and witnesses to be brought before him, and examined into the truth of said complaint, and upon such examination decided that said plaintiff, Margaret Circle, was guilty as charged, and required her, on account thereof, to enter into a bond or recognizance for her good behavior, this constitutes sufficient proof of probable cause for the proceedings of the defendant; and the jury cannot find a verdict for the plaintiff on account of said complaint on oath before Henry C. Douthat, justice of the peace, or on account of the arrest or imprisonment of the plaintiff in pursuance thereof, even though they should find that the complaint was subsequently dismissed by the county court, the plaintiff acquitted and the said bond or recognizance quashed by said court, unless the jury shall be satisfied by the evidence that William W. Womack, the defendant, knew the testimony before the justice to be false.

II.

If the jury shall be satisfied from the evidence in the case that the defendant, William W. Womack, made complaint before Henry C. Douthat, a justice of the peace of the county of Botetourt, against Margaret Circle and Charles Circle, that they had attempted to bribe Hannah Scott to burn the wheat then stacked on his farm, and furnished said justice the names of witnesses to be examined in relation thereto, and that thereupon said justice summoned said witnesses before him and examined them on oath touching the guilt or innocence of said Margaret Circle, and upon such testimony and upon the statement which the parties chose to make, decided that said Margaret Circle was guilty of the offence alleged against her in the complaint, and required her to give security for her good behavior on account thereof, such decision and requirement of said justice are conclusive evidence of the existence of probable cause for the complaint, even though the jury shall find she was innocent of the offence and was afterwards acquitted on appeal to the county court; and the jury must find for the defendant, unless they shall be further satisfied from the evidence that said Womack procured said decision of the justice by testimony known to him to be false at the time.

Instruction given by the court in lieu of Instruction II asked for by defendant's counsel:

I.

If the jury shall be satisfied, from the evidence in this case, that the defendant, William W. Womack, made complaint before Henry C. Douthat, a justice of the peace of the county of Botetourt, against Margaret Circle and Charles Circle, that they had attempted to bribe Hannah Scott to burn the wheat then stacked on his farm, and furnished said justice the names of witnesses to be examined in relation thereto, and that thereupon said justice summoned said witnesses before him, and examined them on oath touching the guilt or innocence of said Margaret Circle, and upon such testimony and upon the statements which the parties chose to make, decided that said Margaret Circle was guilty of the offence alleged against her in the complaint, and required her to give security for her good behavior on account thereof, such decision and requirements of said justice, although reversed by the county court of Botetourt county, is prima facie evidence, and only prima facie evidence of probable cause for the complaint therein mentioned and the proceedings thereon, and that the presumption of probable cause raised by said judgment of the justice may be repelled by other evidence. And if the jury believe, from all the evidence in this cause, that the defendant had probable cause for the complaint and proceedings thereon, then the jury must find for the defendant.

To the action of the court in refusing to give the instructions asked, and in giving the instructions given by the court, the defendant excepted.

Edmund Pendleton and J. H. H. Figgatt, for the appellant.

George W. Hansbrough, for the appellee.

ANDERSON J.

This is an action for malicious prosecution. It is the second time it has been brought here, and it is contended for the defendant in error, that the questions now raised are res adjudicata, and cannot be again heard. But the court is unanimously of a different opinion, and consequently that they are open to adjudication on this appeal. We will proceed, therefore, to the consideration of the case as presented by the record.

Sallie Ailstock, a colored woman, who lived on James river in the county of Botetourt, opposite the farm of Wm. W. Womack, the defendant below, sent him word by a colored man, Billy Burks, on the 1st of July, 1876, that Hannah Scott, also a colored woman, had been bribed by Margaret Circle and Charles Circle, to burn his wheat which was stacked on his said farm. Billy returns from Womack's without seeing him, he being from home. The next morning he started again to go to Womack's house, and met him on Lick Run bridge, and delivered to him Sallie Ailstock's message. Womack, naturally startled by such a message, and the solictude shown to give him the information, went the same day to the house of Sallie Ailstock, and told her what Billy Burks had said, and asked her if it was so. She told him it was so; that Hannah Scott had told her that Miss Margaret Circle wanted to get her to burn the wheat stacked on defendant's farm, and she wanted to get her to go with her and help her to burn it; that the burning was to have taken place on the Wednesday night immediately previous. She further said that she and Hannah Scott had gone to see Margaret Circle on the previous Monday; that they were in the kitchen at Circle's, and Hannah asked her to go to the garden with her; that when she got there she told her, she did not want to show her the garden; that she wanted to tell her that Miss Margaret Circle wanted her to go and burn the wheat on Womack's place; that she and witness could burn it, and then wade the river, as she had tried it and found it was not deep enough to drown her; that there was no conversation between Margaret Circle and her (Sallie) on that occasion, but she heard Margaret Circle ask Hannah if there was no danger in talking before her. That Margaret Circle and Hannah Scott then went into an adjoining room, and remained there talking for half an hour. Afterwards she and Hannah left and walked home together, and on the way Hannah told her that if she would go with her and help her to burn the wheat, she would get her husband to get her a calico dress. She said she had been at Circle's once before with Hannah Scott, and that whilst there, Margaret Circle told Hannah that her brother Charles wanted to see her, and Hannah went to another room to see Charles Circle; and when she and Hannah came away, going home together, Hannah told her that Charles Circle wanted her to burn defendant's tobacco and houses. The foregoing was the testimony of Sallie Ailstock in this suit, as certified by the court below. And she further testified that she had made the same statement to the defendant Womack, when he called to see her on the 16th of July, 1876, and testified to the same before Captain Douthat, the justice who tried the case; and that she had also stated in her testimony before him, that Hannah Scott had offered to give her part of the pay she was to get from Margaret Circle, and that she told Hannah that she would not go with her to burn the wheat.

After this alarming communication was confirmed by Sallie Ailstock with such details and incidents as were calculated to make an impression of its truth, Womack returned home, and doubtless immediately informed V. C. Ryals, his father-in-law, and G. W. Ryals, his brother-in-law, one or both of whom were probably interested in the wheat, of the alarming communication which had been made to him by ...