Cochran v. Bones

BUCKLES, J.

This is an action for malicious prosecution. Plaintiff had judgment. Defendant moved for a new trial which was denied, and this appeal is from the judgment and from the order denying the motion for a new trial.

Defendant went before the justice of the peace of Analy Township in Sonoma County and swore to a complaint charging the plaintiff with petit larceny in stealing a hog, upon which the justice issued his warrant and placed the same in defendant’s hands. Defendant Bones and plaintiff Cochran lived about a mile and a half from each other, and had so lived for several years, but had only a speaking acquaintance, and the defendant did not know plaintiff’s name. In April, 1902, one of defendant’s hogs strayed upon the farm of plaintiff, who did not know to whom the hog belonged. The said hog was seen on plaintiff’s place as often as once a week until

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October of that year, when plaintiff shut his hogs up for the purpose of feeding them, and drove this stray hog away repeatedly, but it kept coming back and he finally found it in the pen with his hogs and did not remember whether he put it there or not, but had no intention of appropriating it to his own use, but let it remain with his hogs until some one should ■come for it. Defendant came for the hog on a day when plaintiff was absent, when plaintiff’s wife requested defendant not to take it away until her husband should return, and defendant complied with her request. On the following day plaintiff went to defendant’s home to see him about the hog, when the following conversation ensued between them :■—■

Defendant.—“You have one of my hogs in your pen?”

Plaintiff.—“Is that so?”

Defendant.—“Yes, sir; I-was over there to get it yesterday.”

Plaintiff.—“Wouldn’t it have been better to have said something to me when you saw me on the road about that being your hog, if it is your hog, and it would look better to come to me like a man and say something to me before trying to take it away?”

Defendant.—“That is my hog and I am going to have it.”

Plaintiff.—“I don’t think that is a very manly way to get it.”