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(15 Cal. App. 461)
CARPENTER v. ASHLEY et al. (Civ. 800.)
(District Court of Appeal, Third District, Cali-
fornia. Feb. 23, 1911. Rehearing Denied
by Supreme Court April 24, 1911.)

9. MALICIOUS PROSECUTION (§ 58*)-EVIDENCE -MATERIALITY.

In an action for malicious prosecution for perjury in a civil suit, the judgment roll in that suit was admissible to show that under the issues therein made plaintiff's alleged false testi

1. APPEAL AND ERROR (§ 1024*)-REVIEW-mony was immaterial, since, if his testimony was immaterial, it could not be a proper basis for a perjury charge.

CHANGE OF VENUE.

An order refusing a change of venue, based on conflicting evidence, will not be disturbed on

appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4028; Dec. Dig. § 1024.*] 2. MALICIOUS PROSECUTION (§ 56*)-BUrden OF PROOF.

One suing for malicious prosecution has the burden of proving malice and want of probable

cause.

[Ed. Note. For other cases, see Malicious Prosecution, Cent. Dig. §§ 112-116; Dec. Dig. § 56.*]

[blocks in formation]

Prosecution, Cent. Dig. §§ 117-124; Dec. Dig. § [Ed. Note. For other cases, see Malicious

58.*]

10. APPEAL AND ERROR (§ 1057*)-HARMLESS ERROR-EXCLUSION OF EVIDENCE.

In an action for malicious prosecution for perjury in a civil suit, error in excluding the judgment roll in that suit, offered to show want of probable cause, was harmless, where the matter was shown on cross-examination of plaintiff.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4194-4199; Dec. Dig. § 1057.*]

11. WITNESSES (§ 269*)-CROSS-EXAMINATION. Where, in an action for malicious prosecution, a witness testified that defendants acted as attorneys for the people in a prosecution, it was proper to ask him, on cross-examination, whether they were district attorney and assistant, respectively.

Cent. Dig. §§ 949-954; Dec. Dig. § 269.*]
[Ed. Note.-For other cases, see Witnesses,

12. MALICIOUS PROSECUTION (§ 58*) — EVI-
DENCE-MATERIALITY.

In an action for malicious prosecution for perjury in a civil suit, evidence as to facts leading to the bringing of that suit was properly excluded, as being immaterial.

[Ed. Note. For other cases, see Malicious Prosecution, Cent. Dig. §§ 117-124; Dec. Dig. § 58.*]

13. MALICIOUS PROSECUTION (8 59*) — EVI

DENCE-MATERIALITY.

In an action for malicious prosecution for perjury in a civil suit, it was proper to receive testimony given on the trial of that suit and presented to the grand jury, as bearing on the question of probable cause.

[Ed. Note. For other cases, see Malicious Prosecution, Cent. Dig. §§ 125-137; Dec. Dig. $ 59.*]

An objection to testimony as being "not punish-cross-examination" cannot be made for the first

time on appeal.

14. APPEAL AND ERROR (§ 206*)—Review—

OBJECTIONS NOT MADE BELOW.

[Ed. Note -For other cases, see Appeal and Error, Cent. Dig. § 1288; Dec. Dig. § 206.*]

Appeal from Superior Court, San Joaquin County; F. H. Smith, Judge.

Action by A. H. Carpenter against A. H. Ashley and another. Judgment for defendants, and plaintiff appeals. Affirmed.

7. MALICIOUS PROSECUTION (§ 24*)-LIABILITY-EFFECT OF ACQUITTAL.

One is not liable for malicious prosecution. if he had reasonable grounds for his belief of accused's guilt, and acted thereon in good faith, though accused was not convicted.

[Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. § 50; Dec. Dig. § 24.*]| 8. APPEAL AND ERROR (§ 1057*)-ADMISSIBILITY-MATTERS ADMITTED.

BURNETT, J. The action was brought by an attorney at law against two other attor

In an action for malicious prosecution, it was not prejudicial error to exclude the record in another criminal case in which plaintiff was convicted, offered merely to show that on ac-neys for malicious prosecution and conspircount of imprisonment limitations had not run, acy, whereby, it is alleged in the complaint, where defendants did not deny plaintiff's alle- said defendants "corruptly, maliciously, and gation of such imprisonment, and admitted it in without probable, or any, cause, prosecuted plaintiff before the grand jury and before a trial jury in the superior court for the crime of perjury," securing an indictment for said

open court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4199; Dec. Dig. 1057.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

A. H. Carpenter, for appellant. Nicol & Orr, C. L. Neumiller, and A. H. Ashley, for respondents.

offense, and subjecting the defendant there-“What facts and circumstances amount to in to the expense, annoyance, and ignominy probable cause is a pure question of law. of a public trial lasting five days and re Whether they exist or not in any particular sulting in his acquittal.

case is a pure question of fact. The former Every allegation in the complaint impugn- is exclusively for the court, the latter for ing the motive, or challenging the good faith the jury." of defendants, or charging the want or prob- With these elementary principles in view, able cause for said prosecution is denied in

we deem it unnecessary to go beyond an the answer. There was a demand and mo- examination of the question of probable tion for a change of venue on the part of cause for said prosecution. plaintiff, supported by his affidavit, in which

[5] The evidence introduced by plaintiff some startling and rather grotesque accusa- included his indictment by the grand jury, tions are made against the defendants, to

on June 10, 1901, for perjury alleged to the effect that "they are and were skilled have been committed on May 31, 1900, and in the art of securing verdicts and manipu- the record of his trial thereon, resulting in lating the members of the panel, and, aside a verdict of not guilty. The indictment was from such skilled manipulations, they exer- based upon the testimony of plaintiff given cised such influence and po ver over the citi-l at the trial of the cause of McGorray v. zens who were or might be called to pass Robinson in the superior court of San Joaupon their conduct as to make it impossible quin county, to the effect that "he, the said for plaintiff or any one else to get a fair A. H. Carpenter, on or about the blank day trial where they were parties to the action.' But, conceding that plaintiff's strange aver: McGorray at Rochester, New York, the deed,

of January, 1892, sent by mail to Bernard ments are not inherently improbable, and that his affidavit should be accorded the

meaning thereby a certain deed," describing

a deed to the property, the title to which same consideration as that of any other per

was involved in the said suit of McGorray son, it is sufficient to say that every suggestion therein of improper influence is posi- v. Robinson, said deed purporting to contively denied, and every implication of bias vey said property to Bernard McGorray by or prejudice on the part of the citizens of Stephen W. McGorray, and “signed, sealed, the county is expressly negatived in the and delivered in the presence of A. H. Carcounter affidavits filed by defendants and penter” and acknowledged before J. H. Tam, used at the hearing of the motion.

a notary public, on the 29th day of Decem[1] Under the familiar rule of conflicting ber, 1891. The pleadings in said cause of evidence, therefore, it is unquestionable that McGorray v. Robinson, consisting of the the order denying the application for

complaint, answer, and cross-complaint, and change of the place of trial cannot be dis- answer to the cross-complaint, were then of. turbed.

fered by plaintiff and received in evidence. It is stated by appellant that "after the The verified complaint therein was filed, denial of said motion the plaintiff, having it appears, on November 15, 1899, and therehad the personal experience of the defend- in it was alleged that “plaintiff is now and ants' skill in securing verdicts, waived a for more than seven years last past has jury, and the case was tried by the court, been the owner in fee" of the land de

scribed. who promptly gave judgment to the defendants on their motion for a nonsuit." Appel- The verified answer and cross-complaint lant does not complain, apparently, so much was filed December 21, 1899, in which, that the judgment was given “promptly," as among other things, it was denied that plainhe deplores the mistake he made in assuming tiff ever had been the owner of any of the that the great skill of defendants could not property described in the complaint. To the influence the court to decide at all against cross-complaint the plaintiff, on January 20, the law and the evidence.

1900, filed an answer in which he alleged [2–4] Be that as it may, the legal princi- that “he is now and always has been since ples involved are well established and may the 29th day of December, 1891, the owner be stated in the language of the Supreme in fee of all the real property described in Court, as they have been thoroughly con. the complaint.” It was further shown heresidered and clearly enunciated in the three in by the evidence that at the trial of the following cases: Ball v. Rawles, 93 Cal. 222, said McGorray case, H. T. Fee, a deputy 28 Pac. 937, 27 Am. St. Rep. 174; Davis v. county recorder of San Joaquin county, proPacific Teleph., etc., Co., 127 Cal. 312, 57 duced and read in evidence, from volume 72 Pac. 764, 59 Pac. 698; and Booraem v. Pot of Deeds of said county, the record of the ter Hotel Co., 154 Cal. 99, 97 Pac. 65. “It deed set out in the indictment; that Beris incumbent upon the plaintiff, and the bur. nard McGorray, who was plaintiff in that den of proof is upon him in an action of case and grantee in said deed, and who was this kind, to prove both malice and want a client of plaintiff herein, testified that the of probable cause." Probable cause is a recorded deed had been sent by its grantor suspicion founded upon circumstances suf- (Stephen McGorray) to and received by him ficiently strong to warrant a reasonable (Bernard) through the mail, at Rochester, man in the belief that the charge is true.” N. Y., in 1892; that he then and there saw

а

upon it the recorder's marks or certificate, such testimony was given, that it was will and the acknowledgment certificate of the ful, and that perjury was therefore comnotary; "that he knew the deed was made mitted. Being district attorney of the counin December, 1891, and his only manual ty, it is reasonable and just, therefore, to receipt thereof was so by mail;” that there. conclude that Ashley considered it his duty after, at the said McGorray trial, Carpenter -and, so believing, it was his duty-to pre(plaintiff herein) testified that he drew the sent the matter to the grand jury, and, in deed and witnessed it; that he had it record-case of indictment, to prosecute Carpenter ed; that furthermore he testified: “I am for the crime of perjury. It was accordsure of this, that the envelope—it was en- ingly presented to the grand jury with a closed in a long envelope and it was my en- transcript of the testimony taken at the velope—and I am sure that I backed it, and said trial of McGorray y. Robinson, and it Mr. McGorray may have put it in a letter, appears, also, that Mr. Carpenter testified in with the deed: I don't know, it is so long before the grand jury, going over, as he ago; have forgotten"; and he was sure that says, “the entire ground," and, furthermore, it was sent to McGorray at Rochester; that that Mr. Ashley advised the grand jury thereafter the cross-complainants called Dep- that the evidence was sufficient to constitute uty Recorder Eschback, who brought with the crime of perjury on the part of Carpenhim said deed and testified that it had not ter, and therefore to indict him. been out of the recorder's possession after Without intimating in the slightest degree it was filed for record. Afterwards Mr. an opinion as to the guilt or innocence of Carpenter had himself recalled, and he tes- Mr. Carpenter of the charge against him, we tified that the deed he sent might have been have no hesitation in saying that the showa prior deed, executed in 1883, but it ap- ing made by plaintiff at the trial herein not peared that the said deed of 1891 was the only failed to disclose the want of probable only one that had ever been recorded. It is cause for his prosecution by the district true that Mr. Carpenter, in one portion of attorney and his codefendant, George F. Mchis testimony, declared it to be his impres- Noble, who was the assistant district attorsion that he had sent the deed; in another ney, but, to the contrary, in the attempt to portion that such was his recollection; but establish his case, plaintiff's evidence reit is a fair inference from all his testimony vealed sufficient facts and circumstances, that he intended to have the court under- known to the defendants, to constitute, so we stand that he had mailed this identical deed must hold, reasonable grounds for believing to Bernard McGorray at Rochester, N. Y. that the charge made against the plaiutiff

From the foregoing it follows that Mr. was true. Ashley had probable cause for believing: (1) [6] It is well to remember, also, that the That the testimony of Mr. Carpenter in the evidence against the plaintiff must be viewed trial of said cause of McGorray v. Robinson here in the light of the following familiar was material to the issue involved in said principles, that "actions for malicious proseaction. This is indeed clear, since the liti-cution have never been favored in law, algation directly concerned the ownership of though they have been readily upheld when a certain tract of land, and plaintiff claimed the proper elements therefor have been preunder said deed of 1891, and the testimony sented. It is for the best interests of socieof Carpenter related to the delivery of said ty that those who offend against the laws deed. It is true that, in a separate defense shall be promptly punished, and that every to the action, it was averred that the said citizen who has good reason to believe that deed was executed and delivered in trust; the law has been violated shall have the but inconsistent defenses are permitted un- right to cause the arrest of the offender. der our practice, and it is manifest that the [7] For the purpose of protecting him in denial of ownership hereinbefore quoted so doing, it is the established rule that if he raised an issue as to the delivery of the have reasonable grounds for his belief, and deed. (2) That the testimony of said Car- act thereon in good faith in causing the arpenter was false, being contradicted by the rest, he shall not be subjected to damages, testimony of said deputy recorder Eschback, merely because the accused is not convicted." and of Bernard McGorray, who testified Ball v. Rawles, supra. that he received the said deed through the [8] There was no error in the court's rulmail in an envelope addressed in the hand-ing sustaining an objection to the introducwriting of his brother Stephen. There are tion in evidence of the record in the case of other inconsistencies also revealed in the People v. A. H. Carpenter on a charge of testimony at said trial, which we deem un- subornation of perjury. It was offered only necessary to notice specifically, tending to for the purpose of showing, on account of discredit said testimony of Carpenter.

the imprisonment of plaintiff, that the statMr. Ashley then having probable cause to ute of limitations had not run against the believe that false testimony was given by present action. The evidence was unnecesCarpenter on a material matter in the trial sary by reason of the failure of defendants of an action, it is reasonable to conclude in their answer to deny the allegation as to that said Ashley actually did believe that the imprisonment, and in addition it may be

a case.

said the incarceration was admitted in open jirrelevant, immaterial, and cannot be proven court.

in that way." Reliance is had upon the cas[9] Plaintiff offered in evidence the judges of Reid v. Reid, 73 Cal. 206, 14 Pac. 781, ment roll in the said case of Bernard Mc- and Thomas v. Black, 84 Cal. 221, 23 Pac. Gorray v. Kate Robinson, for the purpose of | 1037. In the former it was held that, "unshowing that, under the issues therein made, der section 273 of the Code of Civil Procehis alleged false testimony was entirely im- dure, the stenographer's transcript of the material. Manifestly this was a circumstance testimony, in a civil case, given liv a party of importance. If the testimony was entire in a prior action, although certified to by ly immaterial, it could not be made the basis the stenographer as being correct, is not adfor a charge of perjury. Upon the hypothe missible in a subsequent action as evidence of sis that it was immaterial, since the evidence what he said on the former trial.” In the upon a motion for a nonsuit must be con- Thomas Case, supra, the deposition sought strued as favorably for the plaintiff as pos- to be introduced was not certified or authensible, the inference would have to be in-ticated in any way whatever, and the witness dulged that the district attorney knew or had no opportunity to correct it. The cases believed it was immaterial. Hence it would are not in point here, however, for the reabe evidence that the prosecution was insti- son that appellant admitted that the trantuted without probable cause. The court. script contained a correct statement of the therefore, committed a technical error in testimony of the witness. It required no admitting the judgment roll only for the further authentication. It was proper to purpose of showing that there was such introduce it in evidence as the testimony of

the witness in the trial of the McGorray [10] The error, however, was without prej. Case, and, as read before the grand jury, udice, for the reason that on the cross- constituted an important circumstance in the examination of plaintiff the pleadings were consideration of the question of probable read into the record without restriction, cause. and besides the pleadings show, as we hare [14] Appellant also urges in his brief that already seen, that the testimony of plaintiff it was “not cross-examination," but no such was material.

objection was made at the trial. [11] Appellant complains because the court We have endeavored to notice all the overruled his objection to the two following points made by appellant, but we are conquestions asked on cross-examination of the vinced that there is no ground for interferwitness J. A. Plummer: "Mr. Ashley was ing with the action of the court below. then district attorney of this county?" and

The judgment and order are affirmed. "Mr. George F. McNoble was assistant district attorney?" The witness, who was coun- We concur: CHIPMAN, P. J.; HART, J. sel for the defendant in the trial of the perjury charge, had testified in his direct examination that “Mr. Ashley and Mr. Mc

(28 Okl. 541) Noble acted as attorneys for the people in

SPEICHER V. LACY. that case.” Hence said questions were proper (Supreme Court of Oklahoma. April 14, 1911.) cross-examination. But the contention is little short of frivolous, because plaintiff

(Syllabus by the Court.) alleges in his complaint that Arthur H. Ash- VENDOR AND PURCHASER (S$ 54, 194*)-Con

VEYANCES-TITLE-GROWING CROPS. ley was the district attorney and George

Equity treats things agreed to be done as F. McNoble. the assistant district attorney actually performed, and, when real estate is of the county.

agreed to be conveyed by a valid executory con[12] The court was clearly right in sus- title passes at once to the vendee, and with it

tract of sale, without reservation, the equitable taining defendants' objection to the question title to all crops growing on the land, but not asked of Bernard McGorray: “You may as to crops severed from the soil. state the facts that led to the institution of Purchaser, Cent. Dig. $$ 85, 403; Dec. Dig. $$

[Ed. Note.--For other cases, see Vendor and that suit that is entitled Bernard McGorray 54, 191.*] v. Kate Robinson.” The answer to the question could have no bearing whatever upon Error from District Court, Pawnee Counthe materiality of plaintiff's testimony inty; L. M. Poe, Judge. the cause, and the facts that induced MC- Action by L. F. Lacy against I. B. SpeiGorray to bring the suit would not be evi- cher. Judgment for plaintiff, and defendant dence of the motives of these defendants in brings error. Reversed and remanded. the prosecution of plaintiff.

Wm. Blake, for plaintiff in error. Louis [13] To the offer of the testimony of F. S. Wilson and Victor 0. Johnson, for defendEschbach, given upon the trial of McGorray ant in error. v. Robinson, which was presented to the consideration of the grand jury, plaintiff object- TURNER, C. J. This is an action in reed upon the ground that it was "incompetent, I plevin brought by the defendant in error,

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

L. F. Lacy, against the plaintiff in error, I. demurrer to the evidence as to it, the same B. Speicher, in the district court of Pawnee being clearly the property of plaintiff under county to recover 40 bushels of wheat in said contract. But not so as to the corn the stack, 300 bushels of corn in a crib, and growing in the field at that time. It being 300 bushels of corn standing in the field; part of the freehold, all equitable title and all on a certain piece of land described in interest therein, the property of plaintiff, the petition, situate in Pawnee county. Aft- passed to defendant, and became from that er general denial filed, there was trial to time his property, and as to it the demurrer a jury and judgment for plaintiff, and de- to the evidence should have been sustained, fendant brings the case here. At the close of the theory of the law being with reference to plaintiff's testimony, defendant demurred to written executory contracts of sale as stated the evidence, which was overruled, after by the court in the syllabus of Dunn V. which additional evidence was introduced. Yakish et al., 10 Okl. 388, 61 Pac. 926, thus: The first assignment is that the court erred “Equity treats things agreed to be done as in overruling said demurrer. When this is actually performed, and when real estate the state of the case, the rule is: “Where the is sold under a valid contract, the purchase district court overrules a demurrer to plain- money to be paid in part, and the deed ex. tiff's evidence, and thereafter both parties ecuted at a future day, the equitable title proceed with the trial and introduce further passes at once to the vendee.

" And and additional evidence, and sufficient evi- in 1 Pom. Eq. Jur. § 368, thus: “In some dence is introduced to make out a case for respects, and for some purposes, the contract the plaintiff, a judgment rendered and enter- is executory in equity as well as at law; ed in his favor on a verdict for plaintiff will but so far as the interest or estate in the not be disturbed.” Max Meyer et al. v. R. land of the two parties is concerned, it is S. White, 112 Pac. 1005.

regarded as executed, and as operating to There is no material conflict in the testi- transfer the estate from the vendor and to mony. Resolving all controverted questions vest it in the vendee. By the terms of the of fact in favor of plaintiff, the evidence dis- contract the land ought to be transferred closes that prior to February 13, 1906, de to the vendor. Equity therefore regards fendant in error, L. F. Lacy, hereafter called these as done; the vendee as having acquired plaintiff, was the owner of the land describ- the property in the land, and the vendor as ed in the petition; that on said day he and having acquired the property in the price. one J. H. Wiley entered into a contract The vendee is looked upon and treated as whereby he leased to said Wiley said land the owner of the land. An equitable estate for one year from March 1, 1906; that said has vested in him commensurate with that Wiley immediately took possession of the provided for by the contract, whether in fee, premises and farmed the same during that for life, or for years. Although the vendor year; that on July 27, 1906, plaintiff entered remains owner of the legal estate, he holds into a written contract with plaintiff in er- it as a trustee for the vendee, to whom all ror, hereafter called defendant, entitled "Ar- the beneficial interests have passed, having ticles of Agreement for Warranty Deed," a lien on the land, even if in possession of whereby without reservation said Lacy, for the vendee, as security for any unpaid por$400 cash in hand and $4,600 when paid, tion of the purchase money.

It agreed to convey to defendant said land by follows also, as a necessary consequence, warranty deed not later than 30 days there that the vendee is entitled to any improve after; that said sum was paid on August 18, ment or increment in the value of the land 1906, whereupon plaintiff executed and de- after the conclusion of the contract, and livered to him the deed as agreed, and also must himself bear any and all accidental indelivered to him the lease contract entered juries, losses, or wrongs done to the soil by into between plaintiff and said Wiley; that the operations of nature, or by tortious third at the date of said contract of sale the wheat persons not acting under the vendor." In in controversy had been cut and stacked on determining the question of title between the demised premises; that the next day plaintiff and defendant, to said corn upon the plaintiff, who was entitled to receive the execution and delivery of said contract, the same from Wiley as rent under said lease, test is which of them would be compelled to sold 350 bushels of corn to one Fisher, and sustain the loss should the corn have been detwo days later 250 bushels more to one stroyed after that time without the fault of Fayne, which was all the corn in controversy, either. This was the test applied in the Dunn and for which, when defendant refused to Case, supra. In that case Yakish, in writing, let the purchasers remove the same, plain- sold and agreed to convey to Dunn by general tiff bought it back and brought this suit. warranty deed a house and lot in Oklahoma

As the wheat at the time of the contract City for $1,000, $100 of which was cash in of sale was severed from the soil, it seems to hand, the balance to be made in certain pay. be conceded, and properly, that the same, ments. Possession was to be delivered Janubeing no part of the real estate, did not | ary 1, 1898, and a warranty deed thereto was pass to the defendant by said contract, and agreed to be executed February 1, 1898. Afthence the court did not err in overruling his er that time, Dunn commenced suit in equits

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