Winn v. Peckham

Lyon, J. 1. On the trial of this action, the plaintiff intro [498] duced in evidence a copy of the record in the prosecution against him for perjury, duly certified by the clerk of the circuit court for Crawford county, including the warrant issued by the justice and the subsequent proceedings before him, hut not including the complaint upon which the warrant was issued. It is objected that the recital in the warrant that the complaint was made-by the defendant, is insufficient proof of the fact. It may he that the complaint, or a certified copy of it, is the only admissible documentary evidence to establish, $>er se, that the defendant was the prosecutor. But there is abundant evidence in the record, received without objection, and probably admissible had it been objected to, showing aliunde the recital in the warrant, that the defendant was the pi-osecutor. This is sufficient. Hall v. Acklen, 9 La. An., 219. 2. It is not denied that the information for perjury charged that the testimony of the plaintiff in the slander suit, upon which the perjury was assigned,.was material to the issue in that action. A copy of the information is inserted in the complaint in this action, except that, instead of material, the word mentioned is written therein. The court permitted the complaint to he amended on the trial, correcting such error. The amendment was properly allowed. The court also allowed a like amendment of the certified copy of the information which was read in evidence, in which the mistake was also made. It is perfectly apparent that material, and not mentioned, was the word which ought to have been written. The mistake was merely clerical, and suggested at a glance its own correction. Ro one could possibly be misled by it, and no formal amendment of either the complaint or copy was necessary. State v. Crane, 4 Wis., 400. 3. The copy of the warrant issued by the justice on the complaint for perjury, which was read in evidence, was certified by the clerk of the circuit court. It is claimed that the [499] clerk is not the legal custodian of suck warrant, and hence, that his certificate did not make the copy thereof competent evidence. The statute pi'o vides that “ all examinations, evidence and recognizances taken by any magistrate .... shall he certified and returned by him to the clerk of the court before which the party charged is bound to appear.”- Laws of 1871, ch. 137, sec. 55 (Tay. Stats.,1921, § 26). We think that the word examinations, as here used, signifies all of the proceedings before the justice. Any other construction would render the word meaningless in the statute. Hence, we think the warrant was properly returned to the clerk, and that the latter is the legal custodian thereof. 4. Error is assigned upon the ruling of the court admitting in evidence a certified copy of the judgment of acquittal in the prosecution of the defendant for perjury. To maintain an action for malicious prosecution, it is essential that the plaintiff prove; 1. That the defendant prosecuted him maliciously; 2. That the prosecutor had no probable cause to believe that he was guilty of the offense charged; and 3. That the prosecution has terminated. We are not able to perceive how the termination of the prosecution can be proved without showing the final judgment or order of the court in which it was pending. Whether a judgment of acquittal is any evidence of want of probable cause for the prosecution, is a question we are not required to determine on this appeal. If it is not, and the defendant feared that the jury might give it that effect, he should have prayed a proper instruction in that behalf. Ho such instruction was asked. However, the learned circuit judge instructed the jury that want of probable cause for the prosecution “ cannot be inferred from the mere fact that the plaintiff was acquitted in the perjury case.” The cases cited by the learned counsel for the defendant against the admissibility in evidence of the judgment of ac [500] quittal, with, a single exception, fail to sustain his position. The exceptional case is that of Skidmore v. Bricker, 77 Ill., 164, in which such testimony was held inadmissible. The decision in that case is based upon the decision of the same court in Corbley v. Wilson, 71 id., 209. The latter case was an action for slander. The alleged slander consisted in charging that the plaintiff had committed a certain crime. The defendant pleaded the truth of the words spoken. It was held that the record of the trial and acquittal of the plaintiff for the alleged crime, was not competent evidence. Undoubtedly Corbley v. Wilson was correctly decided; but what the doctrine of that case has to do with an action for malicious prosecution, to maintain which the facts of a prosecution and its termination must be proved, is beyond our comprehension. As at present advised, we cannot concur in the doctrine of Skidmore v. Bricker. 5. The court admitted evidence on behalf of the plaintiff tending to show that, at the trial of the suit against the school district, the plaintiff, in the presence of defendant, affirmed the truth of the testimony of the defendant’s son, and expressed himself satisfied with it; also that the defendant on that occasion was excited and angry with the plaintiff. Although this testimony is of little importance in the case, we can scarcely say that it was not competent. It rather belongs to that class of testimony which it is in the discretion of the court to admit or reject; and in relation to which the court may rule either way without endangering its judgment on appeal. 6. Evidence was received of the pecuniary condition of the defendant. This is claimed to be error. The action is one in which the jury might properly award exemplary damages in their discretion, and it is settled in this state that in such an action testimony of the pecuniary circumstances of the defendant is competent. Birchard v. Booth, 4 Wis., 67; Barnes v. [501] Martin, 15 id., 240. That this is a case in which exemplary damages may be given, see cases cited in Tilas & Bryant’s note to Birchard v. Booth. 7. Two instructions proposed .on behalf of the defendant were refused. Both seemed to he inaccurate in form. The general charge covers the' whole case, and contains a clear, accurate and logical statement of the law applicable to it. Additional instructions were quite unnecessary. Counsel for defendant has discussed the testimony at considerable length, and argues that the verdict is against the weight of evidence. But there is sufficient evidence to sustain the verdict, and the question whether it preponderates the other way is beyond our reach. Neither can we say that' the damages are excessive. Indeed, had the jury been restricted to mere compensatory damages, probably we could not disturb the verdict. Craker v. Railway Co., 36 Wis., 657. It is believed that the foregoing observations dispose of all the material exceptions in the record; and, inasmuch as we fail to find any material error in the rulings of the court on the trial, we cannot disturb the judgment. The history of this case would be incomplete, were it not stated that the school district suit, which was the beginning of all the vexatious and expensive litigation between these parties, that has kept their neighborhood in turmoil for years, was brought to recover a claim for eight dollars and fifty cents, and that the plaintiff therein recovered five dollars and fifty cents. By the Cov/rt. — Judgment affirmed.