Wadlington v. Coyne

POLLEY, J. The complaint in this case sets out three causes of action: One for malicious prosecution for starting a criminal action against plaintiff; one for starting a civil action; and one — 565 — for the conversion of personal property. Plaintiff had judgment on the first and third causes, and .defendant appeals. At the trial plaintiff was a witness on his .own behalf and on cross-examination was asked if he did not in a certain business transaction- introduce himself by a name other than his-own. The trial court sustained an objection to the question on the ground that it was not proper cross-examination. We believe the witness should have been permitted to answer this question. We are not unmindful of the very liberal rule that places the extent of the cross-examination of a witness so largely within the discretion of the trial judge. But in this case plaintiff’s right of recovery depended wholly upon who had been the aggressor in a personal encounter that took place between plaintiff and defendant. Each of them testified that the other started the fight. Defendant’s testimony was corroborated by several disinterested witnesses and by all the surrounding circumstances. Plaintiff’s testimony was wholly uncorroborated, therefore the issue depended wholly upon plaintiff’s veracity. This question went directly to his veracity. Going under an assumed name is practicing deceit and dishonesty. A jury knowing of such practice might doubt the word of a witness, although in the absence of such knowledge they might believe him. In other words, this fact alone might turn the scale. In State v. Sysinger, 125 N. W. 879, 25 S. D. 110, Ann. Cas. 1912B, 997, the state was permitted, on cross-examination, to ask the defendant if he had not, on a previous occasion, gone under an assumed name. This court, in holding that, it was not error to permit the witness to answer, said: “The state has a right to' ask the witness any question that would affect his credibility. If the defendant lived under an assumed name in the community, or was known by another name than the one under which he was arrested, it would seriously tend to affect his credibility as a witness on the stand” — citing State v. Ekanger, 80 N. W. 482, 8 N. D. 559; Territory v. O’Hare, 44 N. W. 1003, 1 N. D. 30. True, it does not necessarily follow that because it was not error to receive this testimony in the one case it was error to exclude it in another, but as a general rule it is errer to exclude any testimony that is competent and material. — 566 — Whether the error in excluding the answer to the above question would alone warrant a reversal of the judgment in this case it is not necessary to decide. The case must be reversed on other grounds to be noted hereafter, and attention is called to this question in order that the same error may be avoided in case of another trial. The plaintiff on cross-examination was asked if he did not, on a specified occasion, have a fight with a certain designated person; and also if on another occasion he did not get into a fight with some kids. The trial court sustained objections to these questions on the ground they were not proper cross-examination, These questions do' not go to the credibility of the witness as the former question does. The witness may have had the fights referred to in these questions, and he may have been the aggressor on both occasions; but these facts would not warrant the inference that he had been the aggressor in his fight with defendant nor that he was dishonest. If defendant wished tO' show plaintiff’s fighting, quarrelsome disposition, he should have proved his general reputation in that respect the same as he did his general reputation for dishonesty. . The complaint in the assault and battery case was prepared by the state’s attorney, and signed; by defendant, on the advice of the state’s attorney. On the trial the state’s attorney was asked the following question; “In getting out the complaint and warrant did you do that upon your own judgment, or did you do it because it was requested ?” Also: “After consulting these several witnesses and at the time the case was set for trial, was it then your judgment to proceed with the prosecution of the case for assault and battery?” These questions were excluded on the ground that they called for the conclusion of the witness. It was error to exclude this, testimony. In discussing this feature of the case in Larsen v. Johnson, 197 N. W. 230, 47 S. D. 202, we said: “Whether or not a party communicates to counsel all the facts bearing upon the guilt of the accused known to him, or whether or not the accuser in good faith acted upon the advice of such counsel, are questions of fact to be determined from evidence. — 567 — Likewise, whether or not the state’s attorney based the prosecution on his personal investigation or on the statements of the accuser is also a question of fact to be determined from evidence.” In this case it is the contention of appellant that the facts were fully and fairly stated to the ■ state’s attorney and that the state’s attorney was acting on his independent judgment when he instituted the prosecution. Upon these questions appellant and the state’s attorney should have been permitted to testify. While to a certain degree the question called for the conclusions of the' witness, they also called for a material ultimate fact in the case. Respondent had the privilege either on cross-examination or otherwise to show what appellant actually did state to the state’s attorney, and what knowledge the state’s attorney had upon which to base his judgment. And upon this point, if the state’s attorney consulted the witnesses, aside from' the respondent, as he said he did, and they narrated the facts to him as they afterwards did on the witness stand, then he had sufficient probable cause to warrant ■him' in going ahead with the prosecution, and it is not material what appellant told him- or what his motives may have been. The defendant excepted to the following instruction given by the trial court: “The verdict of not guilty in the municipal court does not establish the fact of want of probable cause. It is merely a circumstance which you may take into consideration as to whether or not there was want of probable cause; that is, in connection with all the other evidence. It is not conclusive. It is just simply an item you may consider in -connection with all of the other evidence in the case in determining whether there was want of probable cause.” This instruction is clearly a misstatement of the law. Want of probable cause is not to be inferred from the verdict of not guilty. The most that can 'be inferred from an acquittal is that the evidence submitted on the criminal trial did not prove “beyond a reasonable doubt” that plaintiff was guilty. The wording of this instruction is especially vicious. To tell the jury that the verdict of not guilty was not conclusive evidence of want of probable cause, on the part of defendant was the equivalent of telling them that, while the verdict of not guilty was not conclusive evidence of want of probable cause, it was very strong evidence of want of — 568 — probable cause. In Newell on Malicious Prosecution, § 8, the law is stated as follows: “The want of probable cause is the essential ground of the action. Other grounds or essentials, may be inferred from this; but this can never he inferred from anything else. It must be established by positive and express proof. It is not enough to show that plaintiff was acquitted of the charge preferred against him, or that defendant had abandoned the prosecution. But the burden of proof is upon the plaintiff, to prove affirmatively, by circumstances or otherwise, as he may be able, that the defendant had no ground for commencing the prosecution. Error is predicated upon the following instruction: “Malice is an essential element of malicious prosecution. Want of probable couse without malice is not sufficient. However, if the evidence shows that there was no probable cause, the jury may infer malice, but are not bound to do so. Whether or not the inference of malice from want of probable cause should ■be drawn by the jury is to be determined in view of all. the other evidence in the case.” This instruction is misleading. The jury was correctly told that malice is an essential element of malicious prosecution; but the court should have added the well-established exception that the malice necessary to justify exemplary or punitive damages’ could not be inferred from want of probable cause. Appellant excepted to the instruction of the court upon the effect of consulting an attorney before commencing the criminal prosecution. This instruction is misleading, confusing, and erroneous. In so far as it relates to the necessity of consulting an attorney, it goes into matters that are in no way involved in this case, for no question is raised but that an attorney was consulted. The portion of the instruction which states that, if the facts show that, notwithstanding the advice of counsel, defendant was actuated by a malevolent intent to injure, vex, or annoy plaintiff, advice of counsel is no defense, is misleading in that in substance it permits the jury to find for plaintiff if they believed defendant acted maliciously, regardless of whether he might have had probable cause. Appellant excepted to the following instruction: — 569 — “There is no question but what the defendant took and converted some corn that belonged to the plaintiff.” This instruction is erroneous because whether the defendant owned or had a right to the possession of the corn in question is one of the issues in the case. The judgment and order appealed from are reversed.