■ Opinion of court delivered, by
Napton Judge.
“Griffin sued Hickman for a malicious prosecution before a justice of the peace.' The declaration charged that the defendant (below) appeared before one Gíazebrook, a justice of the peace in Cole county, and charged him (Griffin) with petty larceny; and procured said justice to issue his warrant; that he caused said Griffin, by virtue of said warrant, to be arrested, and recognised for appearance at the Cole Circuit Court. The declaration further avers the continued prosecution ofiplaiatiffby defendant before the grand jury, and the refusal of said grand jury to find any indictment. The general issue was pleaded, and the parties went to trial.
On the trial, the plaintiff offered in evidence the warrant of the justice, without proving the hand writing of said justice, which the defendant objected to, but the court permitted the writing to go to the jury.
Plaintiff also read the endorsement on the warrant of the return of the constable, without first proving said constable’s hand writing. The plaintiff also proved, that the said constable took plaintiff in custody and carried him bo-[38]*38E maSistrate- also gave m evidence the re» cognizance, which said justice caused him to enter into, and, the records of the circuit court of Cole -county, reciting the impannelling of the grand jury, their failure to find any bill against Griffith, and the subsequent discharge of Griffith by the court. To the introduction of all this evidence the defendant below objected — but the objection was overruled.
The plaintiff then introduced the justice of the peace, Glaze-brook, and proved by him, that the defendant appeared before him, and applied to him for a warrant against Griffin, and that upon his (Hickam’s,) application, he (Glazebrook)' issued the warrant, being the writing first offered. The defendant proposed to prove, upon the cross examination of said justice, what the defendant swore to before him upon his examination but the court refused to allow the justice to state, what the defendant below had sworn to, the plaintiff having previously proved, that several other witness were present at the time the alleged larceny was said to have been committed.
The plaintiff also proved by said justice (Glazebrook) that he (Glazebrook) caused the plaintiff Griffin to enter into a recognizance to appear at the next term of the Cole circuit court and both plaintiff and defendant gave evidence/ conducing to show the existence or want of probable cause and malice.
At the instance of the plaintiff, the court then gave the jury, the following instruction. “If the jury believe from the evideiite, that the defendant prosecuted the plaintiff upon a charge of larceny, and the plaintiff was acquitted and discharged therefrom, and that, the defendant had no probable cause to believe him guilty of the charge, they will find . for the plaintiff.”
The defendant also asked for the following instructions which were given by the court.
1. That to enable the plaintiff to recover in this cause, it is necessary they should be satisfied from the evidence in the cause, that the defendant prosecuted the plaintiff malice, and without probable cause.
[39]*39S. That if tho defendant had probable cause to institute ■the prosecution, that then they ought to find a verdict in his favor.
3. That it matters not how malicious the motive of Hick-am was in prosecutin'; the plaintiff, yet if they believe from the evidence that Hiokam had probable cause for prosecuting him, they ought .to find a verdict for the defendant Hick-am.
4. That the fact that the justice of the peace, Glace-brook, upon tha enquiry before him, recognised the plaintiff in a recognisance, binding him to appear at the Cole Cir-suit Court, to answer over tq the charge mentioned in the prosecution, i s evidence of there being probable cause for the prosecution, and that the jury ought to find for the defendant on such evidence, unless the plaintiif prove by other evidence tiiat the prosecution was imitated without any probable cause.
5. That it is not necessary in this action that the defendant should show that the plaintiff was absolutely guilty, to entitle liickvn to a verdict, but tiiat it i-s only necessary that they ihoul 1 believe from the evidence tint the defendant Ili-skam had probable cause to prosecute him Griffin.
7. T.’rd it matters not how small the amount of money stolen from the defendant was, the defendant stands justified in the cr.v for prosecuting the plaintiff, if he liad probable sause ¡oí die prosecution.”
The jury immd for plaintiff, and defendant moved for a xtew trial, <m the .eüowi.’.g grounds. 1. The court permitted the i-ir-iuiiiF to give improper testimony. 2. The *ourt reikvd io permit the defendant to give all and every part of his to dummy,, 3. The Court misdirected the jury. 'Which motion was overruled by'the Court, and to reverse this judgniem the plaintiff in error has relied on the following points, v. nidi I will examine seriatim.
Fir»t, That, the court erred in permitting the warrant of the justice, the return of the constable thereon, and the recognizance for Griiim’tf appearance, to be read to the jury, without proof of their execution. Second, That the warrant produced did not run in the name of the State of Missouri, [40]*40and consequently, the action should have been trespass vi et armis. Third, That the court erred, in not permitting Hickam’s testimony before the magistrate, to go the jury. Fourth, That the court erred in giving the instruction asked by plaintiff.
perftoi eeedinjr be-not being Iy certified cannot bo road in evi-Circuitm til0 Court, with-cut some proof of their •nthonty.
Where the J. 1?. has juris-the person jaatter^the thought ieetive is tify'the stable. *n.’*,Sthat<a ■pgr «not Maie evi-deuce in his from in an iicíou¡3 pros3. ex* ground of nc-Sr person woro present when the felony was com. the evidence which the dc-*?fdant hlTO' gave may _ he read
[40]*401- If the papers of the 'justice had been duly certified by him, and it appeared from the record, that they were on in the circuit court, there could be no question of their admissibility, without further proof But the papers offered . . 1 were original papers, and there is nothing pre.-ervod in the filH °f exceptions to show how they got into the Circuit Court. The papers were not admissible without seme proof A oí their authenticity^
But †[10 plaintiff, immediately after the introduction of this testimony, in his examination in chief proved by the justice of the peace, Glazebrook,lho identity and authenticity of the warrant and recognizance, and the fact, that the constable, whose name was endorsed on the warrant, had taken the plaintiff in custody and brought him before him, (the justice) for his examination. Whatever therefore might have been defective in the testimony of the plaintiff when first introduced, he proceeded to supply those deficiencies by competent and full proof, and I do not see any good reason for reversing because of this irregularity. If it could be shewn that defendant was anywise prejudiced by this course, it might constitute a sufficient reason with this court, to aside the judgment. But no such injustice appears.
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■ Opinion of court delivered, by
Napton Judge.
“Griffin sued Hickman for a malicious prosecution before a justice of the peace.' The declaration charged that the defendant (below) appeared before one Gíazebrook, a justice of the peace in Cole county, and charged him (Griffin) with petty larceny; and procured said justice to issue his warrant; that he caused said Griffin, by virtue of said warrant, to be arrested, and recognised for appearance at the Cole Circuit Court. The declaration further avers the continued prosecution ofiplaiatiffby defendant before the grand jury, and the refusal of said grand jury to find any indictment. The general issue was pleaded, and the parties went to trial.
On the trial, the plaintiff offered in evidence the warrant of the justice, without proving the hand writing of said justice, which the defendant objected to, but the court permitted the writing to go to the jury.
Plaintiff also read the endorsement on the warrant of the return of the constable, without first proving said constable’s hand writing. The plaintiff also proved, that the said constable took plaintiff in custody and carried him bo-[38]*38E maSistrate- also gave m evidence the re» cognizance, which said justice caused him to enter into, and, the records of the circuit court of Cole -county, reciting the impannelling of the grand jury, their failure to find any bill against Griffith, and the subsequent discharge of Griffith by the court. To the introduction of all this evidence the defendant below objected — but the objection was overruled.
The plaintiff then introduced the justice of the peace, Glaze-brook, and proved by him, that the defendant appeared before him, and applied to him for a warrant against Griffin, and that upon his (Hickam’s,) application, he (Glazebrook)' issued the warrant, being the writing first offered. The defendant proposed to prove, upon the cross examination of said justice, what the defendant swore to before him upon his examination but the court refused to allow the justice to state, what the defendant below had sworn to, the plaintiff having previously proved, that several other witness were present at the time the alleged larceny was said to have been committed.
The plaintiff also proved by said justice (Glazebrook) that he (Glazebrook) caused the plaintiff Griffin to enter into a recognizance to appear at the next term of the Cole circuit court and both plaintiff and defendant gave evidence/ conducing to show the existence or want of probable cause and malice.
At the instance of the plaintiff, the court then gave the jury, the following instruction. “If the jury believe from the evideiite, that the defendant prosecuted the plaintiff upon a charge of larceny, and the plaintiff was acquitted and discharged therefrom, and that, the defendant had no probable cause to believe him guilty of the charge, they will find . for the plaintiff.”
The defendant also asked for the following instructions which were given by the court.
1. That to enable the plaintiff to recover in this cause, it is necessary they should be satisfied from the evidence in the cause, that the defendant prosecuted the plaintiff malice, and without probable cause.
[39]*39S. That if tho defendant had probable cause to institute ■the prosecution, that then they ought to find a verdict in his favor.
3. That it matters not how malicious the motive of Hick-am was in prosecutin'; the plaintiff, yet if they believe from the evidence that Hiokam had probable cause for prosecuting him, they ought .to find a verdict for the defendant Hick-am.
4. That the fact that the justice of the peace, Glace-brook, upon tha enquiry before him, recognised the plaintiff in a recognisance, binding him to appear at the Cole Cir-suit Court, to answer over tq the charge mentioned in the prosecution, i s evidence of there being probable cause for the prosecution, and that the jury ought to find for the defendant on such evidence, unless the plaintiif prove by other evidence tiiat the prosecution was imitated without any probable cause.
5. That it is not necessary in this action that the defendant should show that the plaintiff was absolutely guilty, to entitle liickvn to a verdict, but tiiat it i-s only necessary that they ihoul 1 believe from the evidence tint the defendant Ili-skam had probable cause to prosecute him Griffin.
7. T.’rd it matters not how small the amount of money stolen from the defendant was, the defendant stands justified in the cr.v for prosecuting the plaintiff, if he liad probable sause ¡oí die prosecution.”
The jury immd for plaintiff, and defendant moved for a xtew trial, <m the .eüowi.’.g grounds. 1. The court permitted the i-ir-iuiiiF to give improper testimony. 2. The *ourt reikvd io permit the defendant to give all and every part of his to dummy,, 3. The Court misdirected the jury. 'Which motion was overruled by'the Court, and to reverse this judgniem the plaintiff in error has relied on the following points, v. nidi I will examine seriatim.
Fir»t, That, the court erred in permitting the warrant of the justice, the return of the constable thereon, and the recognizance for Griiim’tf appearance, to be read to the jury, without proof of their execution. Second, That the warrant produced did not run in the name of the State of Missouri, [40]*40and consequently, the action should have been trespass vi et armis. Third, That the court erred, in not permitting Hickam’s testimony before the magistrate, to go the jury. Fourth, That the court erred in giving the instruction asked by plaintiff.
perftoi eeedinjr be-not being Iy certified cannot bo road in evi-Circuitm til0 Court, with-cut some proof of their •nthonty.
Where the J. 1?. has juris-the person jaatter^the thought ieetive is tify'the stable. *n.’*,Sthat<a ■pgr «not Maie evi-deuce in his from in an iicíou¡3 pros3. ex* ground of nc-Sr person woro present when the felony was com. the evidence which the dc-*?fdant hlTO' gave may _ he read
[40]*401- If the papers of the 'justice had been duly certified by him, and it appeared from the record, that they were on in the circuit court, there could be no question of their admissibility, without further proof But the papers offered . . 1 were original papers, and there is nothing pre.-ervod in the filH °f exceptions to show how they got into the Circuit Court. The papers were not admissible without seme proof A oí their authenticity^
But †[10 plaintiff, immediately after the introduction of this testimony, in his examination in chief proved by the justice of the peace, Glazebrook,lho identity and authenticity of the warrant and recognizance, and the fact, that the constable, whose name was endorsed on the warrant, had taken the plaintiff in custody and brought him before him, (the justice) for his examination. Whatever therefore might have been defective in the testimony of the plaintiff when first introduced, he proceeded to supply those deficiencies by competent and full proof, and I do not see any good reason for reversing because of this irregularity. If it could be shewn that defendant was anywise prejudiced by this course, it might constitute a sufficient reason with this court, to aside the judgment. But no such injustice appears.
It is urged that the warrant, not running in the n; me of |Re State of Missouri, was not merelv voidable, but absolute-]y void, and that therefore this action should have been trespass The warrant in this case ran in these words.” “State of Missouri County of Cole, ss,” after reciting th# it proceded “these are therefore to command ^a^ce ^ie fi0<ty &c>” I am n°t prepared to say whether this would be a valid warrant or not, under the decisions of this court, but this court in the case of Miller v Brown (3 Mo. Rep. 130) at least declared, that such a warrant was sufficient to justify the constable, the magistral# whom it was issued having jurisdiction over the person. [41]*41and svoj, if ::>a',ar. The distinctions between case and tros-pass, rs ¡aid down in many of the books, are jo exceedingly refined, 1hai, lixe. the colours of the rainbow, they ran into each ctiur, could puzzle a man of common sense make ihs discrimination. I hold that case was well brought here, ami th.-i an adieu- of tresspass could not have sustained ra/amri the a-va:,table, merely bec-'u:.-:;' of this de iect m hie process whm/i !;e seiwed. 1
'’-..iendaut, or bis cross examination of the to prove tv¡<d tie had sworn to beiore mm, on i!w accuser beiore him (the justice.) Thb the moi-crly end's’eJ. The general rule that a ° •tilowod io unite evidence in hie own favor iVom in ;m action of malicious , „ . rr. , e ground m necessity. 11 no other person ¡en the mk-ny was committed, the evidence, 0. i; .¡e tice, oiler j, the trial m court v\.ry party caaiio* b¡ is not do pa'•led except upon P: were presen., v.’*.-— ,*»»*] wiw mv, which the defendant himself gave, may be road as evidence in this action. Johnson v Browning 6 Mo. 216 cited in Bayard and Perke 158—311 In that case Hale C. J; allowed what the defendants wife had testified at the’trial of the indictment to be given in evidence on behalf of the husband, when sued for a malicious prosecution, there having been no other person present at the commission of the alleged felony. So also in an action on the'statute of Winton, tho party robbed was held a competent witness and the author remarks “these are the only cases,'I believe, in the books, where parties to the cause have been permitted to give evidence for themselves; and in the latter case, it seems to have been taken for granted, that the party could not be examined, though his former evidence was admitted. “Bayard, and Peake 151 in note-The diction in Buller cited at the bar (Bullers N. P. 14,) is unsupported by authority, and. is contradicted by himself on the next page in which he lays down the rule as established in Johnson v Browning. In the case of Hays v Waller (2 Mo. Rep. 222) this court perhaps extend the rule, and allow what the defendant swore to on the trial of the indictment, to be read in his defence on his trial for a malicious prosecution, where it appeared that he swore to a fact which no one who was present ex[42]*42cept himself borne witness to. Admitting this to bo correct, it devolved upon defendant (Plaintiff in error) to shew by the bill of exceptions, that this slate of facts existed. Not having dono so the judgment of the circuit court, on this point must be held correct.
la action for xnahcious prosecution the real point ■isL^ury^f^ probable prosecution^0 and not whether th« defendant has P™^1® lievo the ty^oílvlfetiL yed cause to i»Whore the „Circuit Court gives errono-ror is not faTtlhat cor-root instructions accompanied them, as suc}l ?r" roneous m-struotions thejury.81**4 .
[42]*424. The first instruction asked by the plaintiff and given by the court, is open to criticism. Two objection:, wore urged to it, first that the prosecutor’s belief of the existence of prob; ble causéis made the test, instead of the existence of probable cause, whether within the knowledge of the prosecutor or not, and second, the jury are not told of the necessity of malice as well as the want of probable cause. The instruction is certainly not sufficiently distinct, on this last point, for though malice may be inferred from 1hs want of a probable cause; it is still an essential ingredient in the guilt of the prosecutor, and his liability to the plaintiff. But the subsequent instructions are full and clear on this point and lay down the law with such precision (so far as this point is concerned) that I do not see how the jury could have drawn any inference from the first instruction calculated to prejudice the defendant. The instruction is that if the jury believe from the evidence &c. “that defendant had no probable cause to believe him guilty of the charge, they will find for plaintiff.” The true question; as laid down in Mowry v Miller (3 Leigh 565) is not whether the defendant had probable cause to believe the plaintiff guilty, but whether there existed aprobable cause for the prosecution, no matter whether the defendant knew of its existence or not.
The second instruction given by the court, at the instance of the defendant, is liable to the same objections. “If the defendant had probable cause to institute the prosecution,” is the language of this instruction also, and the words “to institute the prosecution,” may well be substituted for the words “to believe him guilty.” For if the defendant had probable cause to “institute the prosecution,” he had prob-ahle cause to believe him guilty,” and vice versa, whereas ° the real point oi enquiry ior the jury was not whether th® defendant had probable cause to believe the plaintiff guilty*. [43]*43©r wheiher he had probable cause to institute theprosecution, but whether there was probable cause for the prosecution, thereby rcfering the jury to the state of facts that existed in relation to the party accused, and not to tlie knowledge or belief of those facts in the party prosecuting.
Hayden & Adams for appellant.
“To reverse this judgment the appellant will insist upon the following points and authorities.
1. That the court erred in giving the first instruction asked by plaintiff below.
The warrant of the justice of the peace, the return of the constable thereon, and the recognizance for the appearance in the Cole Circuit Court to be read without proof of their execution. •
_ See M’Oarty v Sherman 3 John Rep. 429, 2 Starkie Evi. , , n, , n • 812. Saunders on PL and hvi. 631, side page.
2. The warrant did not run in the name of the State and was therefore void — md the action should have been trespass victannis. Fowler vs Watson 4 Mo Rep. 27.
3. Thai die court orred in not permitting the defendant below to intro,inco in evidence, the testimony he had given before the migi; irate upon the original prosecution, see Ha.¡ve Waller ?> Ho. Rep-. 222 — Bailers N. P. 114.
4. Thai, the court erred in giving the instructions asked foythe dm if boi.nv — seo á,Starki-3’s Evi. Title hlalicious Prosecution, page-- -See i'ltli Johns Rep. 106, Vanduzor vs Linde raían. Joe 2 Siartdo 911, and note 1, et ssq, 3d Leighs Rep. .733.”
Truel ¿b Eirtley for appellant.
Although the act of the magistrate in acquitting or ding on for juruim trial ii evidence to shew probable cause *r not, it is only prima iacie, see 2 Murphey 248, 2 John 203, refered to in 2 Starkie 49 í note 1, and it may be rebutted by other evidence that the prosecution was without' probable cause. 4 Mun. 462 in same note of Starkie, and although defendant may prove a felony committed, and may throw suspicion of the accused, yet it is in ¡uiiicient in case of express juoof that the defendant knew the prosecution was without foundation, 2 Starkie 4iK*.
[43]*43erroneous instructions, the error Where the court gives is not cured by the fact that correct instructions accompanied them. Jones v Talbot 4 Mo. R. 274. Mere defective instructions may be sunplied, but an instruction, which is J 1 . erroneous in it<el¡, may mislead the jury, itor tan reason, tlie judgment of the Circuit Court is reversed and the cause is remanded.” , ,
And m evidence of malice can be inore cogent than that the defendant knew that the plul.’tiil’was innocent, 5 Taunt. 581», 2 Starkie 4i)4note 6.
4. The reason of defendant for a new trial is not true in fact as the record shews all his instructions were given, and the 5th has been answered in the answer to first throe points.”