Green v. Cochran

Day, J. , iuflvor’of011 court’s ruling. I. The plaintiff, in making out his cause in chief, placed on the witness stand one Mrs. Joseph Cochran, stepmother of Caroline Cochran, and propounded to ^er following questions, after it had been s]10wn tlhat defendant had taken the witness, Caro547 : State existing be-line, while pregnant, to the house of one Roster whether or not there was an unfriendly feeling tween you and Caroline?” The defendant’s objection to this question as irrelevant was overruled, and the witness answered as follows: “There was a friendly feeling; and I had her there to work for me at the time when taken away by defendant.” The admission of this testimony is assigned as error. So little of the evidence is contained in the abstract, that we are unable to tell under what circumstances, and in what connection this evidence was admitted. It does appear, however, that there was testimony tending to show that the- defendant was the father of Caroline Cochran’s bastard child. Proof that the relations between Caroline and her stepmother were friendly, might tend to show that defendant had some other motive than the feelings existing between the mother and daughter, for taking her, while pregnant, to the house of Foster. Such testimony might tend, in some degree, to connect the defendant with Caroline’s condition, and corroborate her statement that he was the father of her child. It is very-clear that the.record does not disclose facts from which we can affirmatively find that the admitting of this evidence was error to the prejudice of the defendant. In the state of the record we must, respecting this matter, presume in favor of the correctness of the ruling of the court below. 2_. when em°obo\-ating' II. The plaintiff, in the further examination of Mrs. Joseph Cochran, asked the following question: “After Caroline came home from Foster’s to your house, and after institution of these suits, and while they were pending against Green, state what Caroline told you, if anything, in reference to bringing the suits against Mr. Green, and why she went to Foster’s to live instead of going home to live?” The defendant’s objection to this question was overruled, and the witness answered: “I asked her why Mart (defendant), did not bring her home, instead of taking her to Foster’s. She said that Martin had said if she would swear it was Green’s, and stick to it, that he would run the suit himself, and she would get $4,000 or $5,000.” Error is assigned upon the admission of this testimony. [548] Caroline Cochran, who was a witness for the plaintiff in this case, and swore that defendant was the father of her child, had, in the suit for bastardy against Green, sworn to the complaint charging that Green was the father of her illegitimate child. Her testimony, by these conflicting oaths, was placed under discredit, and anything tending to throw light, however dim, upon the qnestion as to which oath was true, was competent and admissible. It certainly has some bearing upon this question to show that, whilst the suits against Green were pending, and before he sued the defendant, she made statements implicating the defendant, and in harmony with her last oath. This testimony was competent. The degree of its weight and effect is a question of fact for the jury. III. The court directed the jury that plaintiff in his petition alleged that the defendant and Caroline M. Cochran conspired together to injure and defame plaintiff, and did commence a proceeding for bastardy against- plaintiff, and that in pursuance of said conspiracy the said Caroline, by the procurement and at the instance of defendant, commenced an action by civil proceedings against plaintiff for the oídme of seduction. It is claimed that in this instruction the court misstated the issue; that plaintiff does not allege in his petition that Caroline Cochran prosecuted a civil action against him for the crime of seduction; that the petition in this case makes the petition in Cochran against Gi’een an- exhibit, and that it fails to state that Caroline Cochran was a woman of previously chaste character. Whether or not the petition in the first action would have been vulnerable to a demurrer, we need not determine. It is clear that aprima facie case of crime would have been made by proving simply the facts alleged, for the previous chastity of tbe plaintiff in that action is presumed, in the absence of any evidence tending to disprove it. In view of this fact, and the further fact that the petition distinctly charges that Caroline Cochran prosecuted a civil action against plaintiff for the crime of seduction, we are clear that the court did not err in stating the issue. This [549] view disposes also of the objections urged to the thirteenth instruction of the court. ■ 3. malicious mauoe^wañt cause. IY. Complaint is made of the third instruction, which is as follows: “The plaintiff must prove by a preponderance of the testimony that there was a conspiracy entered into between Caroline M. Cochran and this defendant to prosecute this plaintiff for the offense charged; that the suits thus commenced terminated favorably to the plaintiff herein, and that such prosecutions were malicious and without probable cause; and if you so find, and that the plaintiff has been damaged thereby, you will return a verdict in favor of the plaintiff.” The objection to this instruction, which was made after verdict, and incorporated with the motion for new trial under Section 2789 of the Code of 1873, is, that it tends to mislead the jury to suppose that if the prosecution was willful and malicious, and without probable cause on the part of Caroline, it would affect the defendant. In immediate connection with the above, the court instructed the jury as follows: “4. If at the time of the commencement of the prosecution against this plaintiff, the defendant had probable cause for believing the plaintiff (Green) was guilty of the crime of seducing the woman, Caroline, and that he was the father of her unborn child, then yom’ verdict should be for the defendant, although you may find that in the part he took in the matter he was actuated by malice; to hold him liable he must have been actuated by malice and a want of probable cause.” This instruction clearly presents the dpctrine that the defendant can be held liable only for his malice and want of probable cause. Taken in connection with this instruction, it is not at all probable that the jury were misled by the third instruction in the manner indicated by the exception. We have frequently held that instructions must be taken together, and that if, when so considered, they correctly and fairly reflect the law, a judgment will not be reversed, although the instructions, separately considered, may not be unobjectionable. [550] 4 _. con_ spiraey. [549] Y. The court further instructed as follows: “9. Was the [550] defendant guilty of conspiring with the woman, Caroline, for the purpose of instituting the suits against the plaintiff? Upon this point you are instructed that there must be proof that they participated in the same wrongful act; that is, it should appear that the act or acts of this defendant naturally and ordinarily produced the acts of the woman, Caroline, in commencing the suits against this plaintiff.” The objection made to this instruction is, that the court instructed the jury that the conspiracy may be proven if it appears that the acts of this defendant naturally and ordinarily produced the acts of Caroline, without stating that the wrongful acts of defendant were necessary. This objection is without merit. A’ party is held responsible for the natural and ordinary results of his acts. The defendant is charged with a conspiracy to prosecute the plaintiff. If the defendant did acts which naturally and ordinarily would lead Caroline Cochran to commence the prosecution, it is not further required that it should appear that these acts were neeesetxry to the institution of the prosecution. In other words, it needs not be shown that' but for the acts of the defendant, the prosecution would not have been commenced. A number of persons may conspire to do an unlawful act, and each becomes responsible for acts done in furtherance of the conspiracy. It would be no defense as to any one of them to show that his participation was not necessary to the accomplishment of the ultimate purpose, and that it would have been consummated if he had not become a conspirator. YI. In the fourteenth instruction the court directed the jury that, “In addition to the actual damage sustained, you may allow vindictive damages, which are given whenever elements of oppression, fraud or malice enter into the commission of the offense.” It is claimed that this instruction is equivalent to telling the jury that this is a proper case for exemplary damages, because of the use of the indicative form of expression, are given. It is evident that this objection is based upon a misapprehension of the purport of the instruction. The court tells the jury that they may allow vindictive damages, and then states the circumstances under which via [551] dictive damages are proper. The twelfth instruction given by the court is not erroneous. The seventh and eighth asked by the defendant might well have been given, but we have not enough of the evidence to be able to determine that the refusal to give them worked the defendant any prejudice. For aught that appears, the witness, Caroline Cochran, may have been fully corroborated. s.•-: —: anee. VII. Lastly, it is claimed that no cause of action is stated in the petition, in that it is not alleged that the suits were prosecuted, but that they were simply commenced. The petition alleges that both suits have been dismissed and abandoned for want of -prosecution, and are ended. The petition does not show that the abandonment was voluntary, and in that respect it might have been vulnerable to a motion for a more specific statement. The proof shows that the civil suit was voluntarily withdrawn by the plaintiff therein. In Burnham v. Sanford, 19 Wendell, 417, it is held that the mere omission to prosecute an action, by reason of which the defendant claimed a judgment of non pros., or as in case of non suit, does not of itself furnish a sufficient foundation of an action for malicious prosecution; but a voluntary discontinuance of the action by the plaintiff is sufficient to throw upon him, when a defendant in an action for malicious prosecution, the necessity of showing cause for the arrest. See, also, Gilbert v. Emmons, 12 Ill., 143; Kinsey v. Wallace, 36 Cal., 462. No error is disclosed in the record. Affirmed.