Covill v. Gerschmay

Smith, J. Appellant brought this suit to recover damages for an alleged false imprisonment and malicious prosecution. There was a trial before a jury, and a verdict and judgment for the defendant, from which is this appeal. Appellant was arrested upon a warrant issued by Y. S. Ledgerwood, judge of the municipal court of the city of Hot Springs, charging him with the offense of malicious mischief, and upon a trial of that charge the cause was dismissed. Appellant brought this suit, and offered testimony tending to show that the prosecution was instituted by appellee without probable cause, and was malicious, and was begun for the purpose of ejecting appellant from the house which he was occupying as a tenant of appellee. On the other hand, appellee offered testimony to the effect that appellant had failed and refused to pay rent, and had given a worthless check in payment of rent, and that appellant had used, and was using, the walls of a barn on the premisés for fuel. It is contended that the court erred in refusing to give an instruction to the effect that the municipal court had no jurisdiction of the offense charged in the warrant of arrest. This instruction was properly refused. The act of the General Assembly creating the municipal court gave it jurisdiction, “exclusive of the justices of the peace in townships subject to this act, and concurrent with the circuit court, over all misdemeanors committed in violation of the laws of the State, within the limits of the county.” A similar statute was upheld in the case of the State ex rel. Moose v. Woodruff, 120 Ark. 406. The offense charged was a misdemeanor, and the court had jurisdiction to try it. The trial involved no determination of title to, or lien on, land, nor order of court involving its possession. No other question was presented there except the inquiry, whether appellant had been guilty of violating the criminal laws of the State. Appellant requested an instruction to the effect that the verdict of not guilty of the criminal charge made a prima facie case of liability, and cast upon the appellee the burden of showing matter of justification. The court refused that prayer for instruction, and charged the jury that “the mere fact that the defendant was found not guilty, or the prosecution against him dismissed, does not prove want of probable cause or malice, but these facts may be considered along with all the facts and circumstances in the case.” We think no error was committed in refusing the instruction requested and in giving the one set out above. In 18 R. C. L. 40, it is said: “Accordingly, the great weight of authority and reason is that the mere fact of the acquittal of a defendant upon the trial of a criminal charge is not prima facie evidence of the want of probable cause for the prosecution. The evidence of acquittal is admissible, of course, in showing* that the prosecution has terminated favorably to the accused, but it is generally held that its consideration should be limited to that purpose.” The reason of the rule is there stated to be that, “The defendant is entitled to an acquittal and discharge if, upon the whole evidence, both of the prosecution and defense, there remains a reasonable doubt of his guilt, although it may appear that there was not only probable cause for the prosecution, but a strong probability of his guilt. And it would tend very much to discourage honest efforts to enforce the criminal laws if every person who instituted a prosecution in which the defendant was subsequently acquitted should for that reason be presumed to have acted without probable cause, and liable in damages for malicious prosecution. The result of a trial often depends upon many contingencies which could not have been anticipated, and a prosecution may turn out to be entirely groundless, although the facts and cireumstances known to or ascertainable by tbe prosecutor at tbe time it was instituted seemed to point unerringly to the defendant’s guilt.” Counsel for appellant complains of tbe action of tbe court in refusing to give certain other requested instructions. But, as tbe instructions are not set out in tbe brief, tbe presumption must be indulged tbat tbe instructions which were given fully declared tbe law of tbe case. It is finally insisted tbat tbe judgment should be reversed as contrary to all tbe evidence entitled to belief. But tbe credibility of tbe witnesses was a question for tbe jury; and when tbe testimony tending to support tbe verdict is given its highest probative value, we are unable to say, as a matter of law, tbat appellee did not have probable cause to believe tbat appellant had committed tbe offense charged. No error appearing, tbe judgment is affirmed.