Lenoir v. Marlin

KEY, Associate Justice. Suit by appellee for damages. His petition contains two counts, one charging malicious prosecution, and the other slander. The case was tried without a jury, and resulted in a finding against appellant on the count for malicious prosecution, the damages being assessed at $500. We adopt the trial judge’s conclusions of facts, except the finding that a want of probable cause and malice were shown. The evidence shows clearly, that before making the complaints charging appellee with theft and receiving property knowing it to have been stolen, appellant laid the matter before the county attorney; stated to that officer all he knew about it; refused to make the complaints until after that officer had seen and examined the witnesses; that the county attorney sent for the witnesses, and examined them under oath in appellant’s presence; that they confirmed what appellant had told the county attorney; that the county attorney told appellant that the evidence was strong enough to send appellee and the other accused persons to the penitentiary, and that it was stronger against appellee than the others, and that he wrote out, and advised and urged appellant to sign the complaint. Since this case was tried, our Supreme Court, in Sebastian v. Cheney, 86 Texas, 497, held, that when a person in good faith makes to the prosecuting officer a fair statement of the facts, as known to him, concerning the charge of which he makes complaint, and the prosecuting officer advises the prosecution, such action of the prosecuting officer is proof of probable cause, and a defense to an action for malicious prosecution. We think the court below ruled correctly on the count for slander; but on the other branch of the case, under the case cited, the ruling was erroneous. . The judgment of the District Court will be set aside, and judgment here rendered that appellee take nothing, that appellant go hence without day, and that appellee pay all costs of both courts. Reversed and rendered. Delivered April 17, 1895.