Schenck v. Butsch

32 Ind. 338

• Court: Indiana Supreme Court
• Decided: November 15, 1869
• Status: Published

Opinion

Elliott, J.

Numerous objections are urged to the proceedings in the circuit court, which will be examined in the order in which they are presented by the appellant’s counsel.

The first is' the refusal of the court to require the appellee to “ paragraph his complaint.” The motion was very properly overruled, for the reason that the complaint contained but one paragraph, and presented but a single cause of action.

The alleged malicious prosecution commenced with filing the affidavit before the justice, charging the appellee with forgery, and terminated with his final acquittal on trial in the circuit court.

Overruling the demurrer to the complaint presents the next question.

The complaint is objected to because copies of the affidavit filed before the justice by the appellant, the justice’s warrant, and the indictment, referred to in the complaint, were not filed with., or otherwise made a part of, the complaint.

The action is not founded on those papers within the meaning of the provision of the code requiring copies of written instruments to accompany the complaint in certain cases; Ammerman v. Crosby, 26 Ind. 451.

It is also insisted that the complaint is -defective in failing to show that the appellee had obtained the order of the court, for a copy, of the indictment before commencing this suit. We are not aware of any rule of practice, in this State, requiring such an order.

It is claimed that the complaint does not contain an allegation that the charge of forgery preferred by the appellant against the appellee was .false, and that it is, for that reason, defective. In that part of the complaint which charges the appellant with filing an affidavit before the justice charging the appellee with the crime of forgery, the language used is, that the defendant, in his affidavit, “did, maliciously, and without probable cause, charge the said plaintiff with committing the crime of forgeiy,” &c.; but it does not contain an allegation that the charge was false. In a subsequent part of the complaint, however, it is alleged, that “the said'defendant did, at the next term of the said circuit court,” * * * “ appear before the grand jurors of said county, and did falsely and maliciously, and without any probable cause whatever, cause said grand jury to indict the said plaintiff for the crime of forgery,” &c. And, again, near the conclusion of the complaint, this language is used: “ The plaintiff says that by reason of the false charges, arrest, imprisonment, and prosecution aforesaid, he has been greatly injured,” &c.

In that part of the complaint chargingthe appellant with having procured the indictment, the falsity of the charge is alleged in the very language of the precedents. 2 Ohitty PI. 606. The complaint is certainly not a very formal one, but we think its averments show a valid cause of action.

The ruling of the court, striking out the first and second paragraphs of the answer, is complained of. This question is not properly before this court. When those paragraphs were stricken out they ceased to be a part of the record, and could only be brought on the record again by a bill of exceptions. This was not done; and as the paragraphs are not before us, we cannot say that the court erred in striking them out. Ammerman v. Crosby, supra.

On the trial of the cause, the appellee testified, that he paid his attorneys, Shackelford and Hornbrook, for defending Mm against the charge of forgery. The admission of this evidence is claimed to- be error.

The record shows that the evidence “was objected to and excepted to at the time,” but it does not show that the ground of objection was pointed out or stated to the court below. It is not, therefore, available in this court. Ammerman v. Crosby, supra. In this connection, an objection is made to a part of the tenth instruction given by the court to the jury, in which they were told that, if they found for the plaintiff, he was entitled to recover his necessary expenses in defending the prosecution for forgery, “ including a reasonable attorney’s fee.” The giving of this instruction is not embraced in the causes filed for a new trial, and no question can be based upon it in this court. We do not say that the instruction was erroneous. The question is not before us, and, therefore, we express no opinion in reference to it.

The court permitted the appellee to read in evidence to the jury, on the trial of the cause, the appellant objecting thereto, a certified copy of the transcript filed in the circuit court, of the proceedings before the justice of the peace on the charge of forgery against the appellee, referred to in the complaint, together with a certified copy of the original affidavit filed by the appellant before the justice, and of the warrant issued thereon by the justice for the arrest of the appellee, the justice having filed said original warrant and affidavit in the circuit court. It is insisted that the court erred in the admission of this evidence. The ground of objection was not stated in making the objection to the evidence, and the question is not, therefore, properly before us.

In this connection, the appellant, at the proper time, asked the court to. instruct the jury, that “that portion of the transcript of the record in the case of the State of Indiana v. Philip Butsch, in the Vanderburgh Circuit Court, which refers to the proceedings had before tíre examining justice , in Vanderburgh county, is not evidence of the connection of the defendant in this case with the prosecution of Butseh for forgery before the examining justice named therein.”

The part of the transcript referred to in the instruction contains the matters stated above, which the court permitted to be read in evidence. It is insisted that the copy of the transcript of the proceedings referred to, being only the copy of a copy, was not evidence, and that the original affidavit and warrant were the best evidence, and hence that certified copies of them could not be received without properly accounting for the originals. But this does not meet the real question presented by the instruction. The trans-script of the proceedings and copies of the papers referred to were admitted in evidence by the court, and the appellant not having properly objected thereto, it stands as though it had been admitted without objection. The certified transcript may not have been the best evidence of the matters contained in it, but being admitted without proper objections to it, it became evidence of the facts contained in it, and the court properly refused to exclude it from the consideration of the jury. "We think the instruction, for the reason stated, was correctly refused, and we need not, therefore, examine the question whether the certified transcript was properly admissible in evidence.

The appellant asked the court “to instruct the jury whether the facts relied on in the defense, on the supposition that they should be found true by the jury, make out a probable cause;” which the court refused, and this is claimed to be an error. The record does not show that the instruction was presented to the court at a proper time, but we do not place the decision of the question on that ground. The instruction is too indefinite to present any question. The issues in the ease were made by a general denial of the complaint. The facts relied on by the appellant to show probable cause are not presented by the pleadings and are not stated in the instruction.

The judge who presided at the trial, and who heard the argument as well as the evidence in the case, might possibly have had some idea as to what facts were referred to by the instruction, but this court, deprived, as it is, of the .lights which it is barely possible might have directed the mind of the judge below to guess correctly as to the meaning of the instruction, is asked to reverse the ruling of the court below, without any reasonable means of determining what were the facts relied on by the’appellant to show probable cause. The court below was clearly right in refusing the instruction.

The appellant complains of the refusal of the court to propound to the jury a special interrogatory asked by him, as follows: “Do the jury find from the evidence that Philip Butsch, the plaintiff was bound in a recognizance by the examining justice in Vanderburgh county, to appear before the Vanderburgh Circuit Court, at its next term, to answer the charge' of forgery ?” The interrogatory was not asked on the condition that the jury found a general verdict, and was properly refused for that reason; but it was ’ also properly refused because it was as to a matter wholly immaterial in the case. It is argued by the appellant, that if Butsch was so bound in a recognizance, that fact was sufficient evidence of probable cause for the prosecution in the circuit court. *

The fact that the justice required Butsch to enter into a recognizance is alleged in the complaint. It stands as a fact admitted by the appellee, and it was not necessary to have it specially found by the jury to get it on the record, and the appellant had the fact upon his demurrer to the complaint.

Error is assigned' on the refusal of the court to give to the jury the sixth instruction asked by the appellant, that “the plaintiff cannot recover if the defendant, Schenck, acted under the advice of counsel, obtained in good faith, upon information of the real facts of the case.”

The refusal to give this instruction was not embraced in any of the causes for a new trial, and, therefore, it cannot be urged in this court as a cause for reversal; but it is not improper to state, that the court in its own charge to the jury instructed fully on that subject, and substantially as asked by the appellant.

The appellant requested the court to instruct the jury as follows: “ That the plaintiff in this cause, in order to re- ' cover, must prove that the defendant herein did, by his written affidavit, signed by him, and sworn to by this defendant, charge the plaintiff with the crime of forgery, and that with malice and without probable cause, he did after-wards prosecute the same cause in the Vanderburgh Circuit Court.” The instruction was refused, but the court did instruct the jury, “that the plaintiff, to sustain his case, must prove substantially every material allegation affirmed by him and denied by the defendant, by a fair prepondei’ance of all the testimony given in the case.”

The facts emimerated in the instruction.asked are averred in the complaint, and hence the instruction asked was substantially embraced by the instruction given by the court.

The appellant argues the merits of the ease on the evi- ■ dence, and insists that it clearly establishes probable' cause for the prosecution.

The evidence is quite voluminous, and a review of it here is not necessary. But it discloses this state of facts: In the fall of 1866, Butsch had in his possession a promissory note, payable to himself, for one hundred and fifty dollars, dated September 3d, 1866, and due six months after date, which purported to be signed by the appellant as the maker, thus: “x x x Joseph Schenck.”

Butsch subsequently sold the note to Smith and Richman, of Evansville. The appellant afterwards saw Smith and Richman to whom he denied the execution of the note, and denounced it as a forgery, and on the 14th of January, 1867, went before a justice of the peacé, filed an affidavit, and commenced the prosecution against Butsch for forgery, in forging his name to the note, out of which this shit has sprung. Butsch had worked for the appellant about a year, part of the' time at three dollars per day, and the residue at two dollars per day.

Butsch, on the trial of this cause, testified, that when he quit working for Schenck, on the 3d of July, 1866, they had a settlement, and Schenck owed him a balance of one hundred and fifty dollars; that he afterwards called on Schenck several times for the money, but he could not pay it; that Sehenck finally told him to have a note drawn up and come out again; that he accordingly got Captain Red-fern to draw up the note, which he took out; that he met Schenck coming from Hufnagles to his own house; he said he had no money; that Butsch and Schenck then sat down on an old log; that he then presented the note, told Schenck how much it was, but did not read it to him; that Sehenck told him to write his name to it, which he did, and Schenck then took the pen and made the three crosses immediately before his name. Schenck testifies that he had fully paid Butsch for his work, that he owed him nothing at the date of the note, and that he did not execute the note. Row, it is evident from the circumstances, that both of the parties knew whether Sehenck did or did not execute the note. If he did not, then it is equally evident that Butsch must have forged it, and Schenck was fully justified in prosecuting him for forgery. But, on the other hand, if Schenck did execute the note, then there was no cause whatever for the criminal prosecution, and, upon that hypothesis, it was wicked and malicious in the extreme, and attempted to be sustained by perjury.

The material question in the case for the decision of the jury became one of veracity between the parties. Their evidence was in direct conflict, and it was the peculiar province of the jury who had the parties before them, and heard them testify, to weigh all the evidence on the one side and the other, and determine between them; and we must presume that they did so impartially, and having found for the appellee, we cannot disturb their verdict on the evidence.

B:A. Ilill, for appellant. 8. B. Hornbrook and J. M. Shackelford, for appellee.

The judgment is affirmed, with costs and five per cent, damages.