Peck v. Chouteau

91 Mo. 138

• Court: Supreme Court of Missouri
• Decided: October 15, 1886
• Status: Published

Opinion

Black, J.

This was an action for malicious prosecution, in which Charles P. Chouteau, John M. Glover, and Joseph H. Livingston were made defendants. The cause was dismissed as to Livingston. Yerdict and Judgment for the defendants, from which the plaintiff appealed.

The substantial averments of the first count are, that, on the eighteenth of July, 1882, the plaintiff was indicted upon a charge of fraudulent conspiracy with Engelke and Barrett to defraud Alice Livingston and others interested in a corporation known as the Windsor Hotel Company; that he was arrested on the twenty-sixth of July, 1882, and tried and acquitted on the twenty-first of December, 1882, in the court of criminal correction of St. Louis; that Chouteau was a member of the grand jury which returned the indictment, Livingston a witnesss, upon whose false statements the indictment was procured, and Glover assisted in its procurement; that the defendants, maliciously and without probable cause, procured the indictment and caused the plaintiff to be arrested and prosecuted thereunder. The second count, omitting the various charges of malice and want of probable cause, states that defendants procured the arrest of the plaintiff on the twenty-second of December, 1882, upon a false charge of conspiring to defraud Alice Livingston; that this charge was withdrawn, on the fifteenth of January, 1888, but before it was withdrawn, and on the same day, another one was lodged against him, upon which he was arrested ; that he was tried in the same court, acquitted, and discharged -on the sixteenth of March, 1883.

The answer of Chouteau is a general denial, with the averment that, at and prior to the alleged grievances the general reputation of the plaintiff for honesty and integrity was bad. Griover made a like answer, with the additional averment that, whatever “he did was done as a duly enrolled and practicing attorney, and not otherwise. Yery little of the evidence offered on the trial, which was hotly contested, lasting for at least two weeks, is preserved. The record recites that plaintiff offered evidence tending to prove the allegations of the petition, and there was evidence tending to sustain the issues on behalf of the defendants, and to disprove the averments of the petition. The records from the court of criminal correction are in evidence, and they show that the plaintiff was arrested, tried, and acquitted on the indictment and on the information, as stated in the petition. They show, however, that Barrett and Bernard. H. Engelke were also included in the same prosecutions with plaintiff, and were also acquitted.

1. Various errors are assigned in the admission of evidence over the objections of plaintiff. And, first, in the cross-examination of Engelke, and the direct examination of Dyer, a witness called by the defendants, general objections were made by the plaintiff, of which the following will serve as an example: “Counsel for the plaintiff objected ; objection overruled, and plaintiff excepted.” The ruling of the trial court on such general objections cannot be reviewed here. The objections must show the specific grounds on which they are made: Shelton v. Durham, 76 Mo. 436. The rule has been so often asserted and well understood that there can be no hardship in its enforcement. Unless adhered to with-rigor, we must reverse causes upon points of evidence not called to the attention of the trial court, and often not intended to be raised on the trial'at all. The various objections of the character before noted need not be specially mentioned; what is here said will suffice as to all of them.

2. Again, the bill of exceptions states that Bernard, H. Engelke, a witness for the plaintiff, and one of the persons named in the indictment and information, was fully examined as to all the matters relating to the controversy, and as to the circumstances connected with making the alleged fraudulent loan ; that he testified that the money was paid to the hotel company, and to other material facts in the case; that, on cross-examination by defendant, he testified as follows : ‘ Did you ever before decline a proposition to turn state’s evidence and betray your friends?” The plaintiff objected on the ground of immateriality, the objection being overruled, he excepted, and the witness answered: “I never had such a proposition made to me by any man until this offer.”' The question and the answer both plainly indicate that something had been said previously, in the examination, in respect of a proposition to turn state’s evidence. Whether in the direct or cross-examination is not stated but as the bill of exceptions is made out, it does not show any previous cross-examination, and the only inference is, that it was a matter brought out in the direct examination. That being so, the cross-examination was not beyond the bounds of legitimate inquiry. Before a judgment can or will be reversed, because of the admission of immaterial evidence, the record must not only show that objections were made and exceptions taken, but it must clearly appear that the evidence was immaterial. The presumption is in favor of the correctness of the ruling of the trial court, until the contrary is made manifest from the record. McMillen v. State, 13 Mo. 33; Holmes v. Braidwood, 82 Mo. 613; State v. Tucker, 84 Mo. 26.

3. The same witness, in further cross-examination, stated that no proposition to turn state’s evidence was made to him in certain prosecutions instituted by the United States ; that he testified on those trials ; that in one of those cases he pleaded guilty to a misdemeanor, not to a felony. The indictment being shown to him, he was asked if lie pleaded guilty to it, and be said be did, but at the same time, counsel for the plaintiff objected to any further inquiry in that behalf until the indictment should be put in evidence. It was then offered, when an objection was made on the ground that the record showed Mr. Engelke-s acquittal and discharge. Tbe record was then read,* to which exceptions were taken. Tbe record shows that Engelke and bis partner in business were, seven or eight years before this trial, indicted on seven counts for feloniously removing distilled spirits on which the tax had not been paid, for the purpose of defrauding the government; that he pleaded not guilty; that, four months thereafter, he pleaded guilty as to three of the counts, and some six months later, by leave of the court, he withdrew the plea of guilty and the prosecution was dismissed as to him.

It is strongly urged by the defendants that, as Mr. Glover, one of the defendants, and counsel for the other, knew of these whiskey prosecutions, and that Engelke had pleaded guilty to a charge of conspiring to defraud the government, the circumstance would, naturally, and of right, lead him, and through him, his client, to believe that Engelke would be likely to engage in another conspiracy to defraud. As both malice and want of probable cause are essential elements to be made out by the plaintiff in a malicious prosecution, evidence tending to disprove malice or show probable cause is competent on behalf of the defendant. The defendant may show the general bad reputation of the plaintiff ; and authorities are cited to show that the defendant may offer evidence to the effect that the plaintiff had been guilty of other similar offences about the same time, knowledge of which had come to the defendant before he instituted the prosecution. 3 Suth. on Dam. 708, and cases cited by counsel for defendant. But, while Peck and Engelke were held jointly prosecuted, Peck was not a party to éhe whiskey prosecutions, and it is not claimed that he had anything to do with them. Even if the evidence was competent as against Engelke in a suit by him, which we do not affirm, still the fact that Engelke had been engaged in a conspiracy to defraud the government, six or seven years before, is no evidence showing, or tending to show, that Peck would be likely to be guilty of such an offence as that with which he is charged. The reception of the evidence cannot be justified on the ground that it tends to disprove malice or show probable cause.

4. The indictment, and the proceedings had thereon, if admissible for any purpose, could only be received to affect the credit of the witness. When it is proposed to exclude the witness, because he has been convicted of some infamous crime at the common law, or made so by statute, a verdict of a jury or plea of guilty is not sufficient. It is the judgment, and that only, which is evidence of the party’s guilt, for the purpose of rendering him incompetent to testify. Whart. Evid. [2 Ed.] sec. 567; 1 Greenl. Evid. [14 Ed.] sec. 875. With us, a conviction of a crime no longer renders the defendant incompetent to testify, but it may be read as affecting the credit of the witness. Mr. Greenleaf says, at the section last cited: “If the guilt of the party should be shown- by oral evidence, and even by his own admission (though in neither of these modes can it be proved, if the evidence be objected to), or, by his plea of guilty which has not been followed by a judgment, the proof does not go to the competency of the witness, however it may affect his credibility.” The intimation, if not the statement, here made is, that a plea of guilty may be shown, as affecting the credibility of the witness. The above quotation was approvingly cited in State v. Rockett, 87 Mo. 668. In that case no question was made but that a conviction for a misdemeanor might be read, as going to the credit of the witness. While a plea of nolo contendere in a criminal case is an admission only for that trial, a plea of guilty, in a criminal case, may, in a civil suit, involving’ the samé subject matter, be used as' an admission. Whart. Evid., sec. 783; 1 Grreenl. Evid., sec. 179. Here there was a solemn plea of guilty, made after due time for deliberation. If the verdict of a jury, followed by a judgment, will affect the credit of & witness, no reason is seen why this solemn admission should not have the same effect. If it is the commission of the crime that affects the character, then the confession is certainly of equal weight with the verdict and judgment. Though the government saw fit and proper to dismiss the prosecution without entering a judgment on the plea, still we hold that the record was properly received in evidence. There are other objections to the-evidence drawn from this witness, but they are subordinate to the question just determined, and need not, therefore, be considered.

5. For the plaintiff the court instructed the jury that malice means a wrongful act done intentionally, without legal justification or excuse. This definition is taken from Sharpe v. Johnston, 59 Mo. 557, that is to say, from instructions which were given in that case. The plaintiff cannot, and, of course, does not, complain of the definition, for it was given at his request, but he does object to an instruction given upon the same subject at the request of the defendant, which is as follows:

“Mere dislike or ill-will towards one by another does not constitute malice in the legal sense. There must be some act done by the defendant, with intent to-injure the plaintiff, and such act must be wrongful, and must be done without legal justification or excuse ; and unless," etc.

We do not see that this instruction modifies or weakens the force of the definition previously given. It evidently was designed to, and does, assert the proposition that dislike or ill-will, so long as it remains a feeling-only, unaccompanied with any act, does not constitute malice in the sense in which the word is used in the instructions; that such feeling must be embodied in some act. That is what is meant by plaintiff’s instruction, when it said, malice means a wrongful act. done intentionally, etc. Cooley says legal malice is made out by showing that the proceeding was instituted from .any improper or wrongful motive, and it is not essential that actual malevolence or corrupt design be shown. Cooley on Torts, 185. Substantially, the same thing is said in Alexander v. Harrison, 38 Mo. 259, and in Barron v. Mason, 31 Vt. 189. If, then, the instruction had the effect to withdraw from the jury the motives with which the defendants instituted the prosecution, it could not be sustained, but we do not see that it could have had that effect. Other instructions show that the purpose of the defendants in commencing and carrying on the prosecutions was kept prominently before the jury.

6. Objection is also made to an instruction, which, in substance, is, that the finding and return of the indictment is prima facie evidence of probable cause, ‘ ‘ and unless this proof is overcome by evidence either that said indictment was procured by false or fraudulent testimony, or that, notwithstanding the finding of said indictment, said defendants did not believe the plaintiff eo be guilty of the offence for which he had been indicted, the jury will find for the said defendant on the first count.” This instruction has the sanction of at least two former rulings of this court. Sharpe v. Johnston, 76 Mo. 670; Van Sickle v. Brown, 68 Mo. 627. The statement that the finding and return of the indictment is prima facie evidence of probable cause is no more than to say the burden of proof to show want of probable cause is upon the plaintiff. The latter part of the instruction is to be taken in connection with another, whereby the jury were properly told that probable cause must have been the belief, by defendants, of the guilt of the plaintiff, based on facts and circumstances sufficiently strong to have induced sucli belief in the mind of a reasonable and cautious man. The instruction, considered in the light of the one just alluded to, is not objectionable. It is to be observed the instruction under consideration relates alone to the first count. That Chouteau was a member of the grand jury does not make the instruction vicious. That fact was a circumstance, however, which the jurors had a right to consider.

7. The sixth instruction for the defendants, and to which objection is made, does not more than say that if-Chouteau’s connection with the prosecution ended with the trial upon the indictment, and that neither he, nor G-lover for him, took any part in the prosecution upon the information, then the finding should be for him on the second count. This is clearly its only fair meaning and it embodies a correct proposition of law.

8. Finally, as to the plaintiff’s refused instructions. These relate to Glover only as the attorney of Chouteau. The fact that the client is actuated by malice and the attorney knows it cannot make the attorney liable, for malice alone would not even make out a case against the client. If there is probable cause for the prosecution then the suit for malicious prosecution must fail, though malice be clearly shown ; and it must follow'that knowledge on his part, by the attorney, that the client is actuated by malicious motives, is not sufficient to make the attorney liable. But if the attorney knows that the client is actuated by malice, and also knows that there is no cause for the prosecution, the dictates of common honesty require that he also should be made accountable. As said in Burnap v. Marsh, 13 Ill. 538: “Where the client will assume to dictate a prosecution upon his own responsibility, the attorney may well be justified in representing him so long as he believes his client to be asserting what he supposes are his rights, and is not making use of Mm to satisfy Ms malice. But when an attorney submits to be made the instrument of prosecuting and imprisoning a party, against whom lie knows Ms client has no just claim or cause of arrest, and that the plaintiff is actuated by illegal or malicious motives, he is morally and legally .just as much liable as if he were prompted by his own malice against the injured party.” The rule is more favorably stated for the defendant in Bicknell v. Dorion, 16 Pick. 478, where the following conclusion is reached: “In order, therefore, to charge an attorney upon this ground [a conspiracy to bring a groundless suit] it must not only appear that there was an agreement to bring an action which was in fact groundless, and which the attorney supposed to be groundless, but that it was agreed to bring an action understood by both parties to be groundless and brought as such.” We are not prepared to go further than is indicated in the extract from Burnap v. Marsh, supra, and think it asserts a salutary and reasonable rule. Now, in this case, it is to be observed that, in so far as it can be said, in any view of the case, that Mr. Gflover acted outside of, or beyond, his professional capacity, the instructions given are full and favorable to the plaintiff, and no other. instruction should have been given upon that branch of the case. The instructions do not predicate a right to recover upon the fact that Mr. Glover knew that the action was groundless, and that he knew that Chouteau acted in the matter from malicious motives; but they say that if he knew, “or, by the exercise of reasonable diligence, might have known, that there were no facts sufficient to constitute probable cause,” etc. The attorney has a right to advise and act upon the facts which he gets from his client, and it is not his duty to go elsewhere for information. According to these instructions an attorney could not, with safety, advise the arrest of any criminal until he has exhausted reasonable diligence in the search for information as to whether a crime had been committed. He would stand on no other or different ground from that of the client. The statement of such a proposition is enough to condemn it. We state again that the attorney has a right to advise and act upon such information as the client reveals to him.- Nothing short of complete knowledge on the part of the attorney, that the action is groundless, and that the client is acting solely through illegal or malicious motives, should make him liable in these actions. As said by Mr. Justice Bradley in Campbell v. Brown, 2 Woods, 350: “If attorneys cannot act and advise freely and without constant fear of being harassed by suits and actions at law, parties could not obtain their legal rights.”

The judgment of the circuit court is affirmed,

in which all concur. '