Harrington v. Tibbet

COOPER, C.

Action for malicious prosecution. The trial court sustained defendant’s demurrer to the complaint without leave to amend. Judgment was thereupon entered for defendant, and this appeal is from the judgment.

[79]

The complaint alleges that on the twentieth day of August, 1903, the defendant maliciously, intending to injure plaintiff in his good name and reputation, appeared before a justice of the peace of Riverside County, and without probable cause falsely charged plaintiff with having committed a felony,— to wit, with having obtained money under false pretenses. The complaint then alleges the facts and circumstances that were set forth in the complaint in the justice’s court, which were, that the plaintiff in this action designedly, falsely, and feloniously did represent and pretend that he could purchase certain personal property at certain figures, and that if defendant would advance to him one hundred and eighty dollars, he (this plaintiff) would purchase the said property, and give it, With other property, to defendant as security; that defendant, by reason of the said representations, loaned to this plaintiff the said sum of one hundred and eighty dollars, and that the said representations were false, and that plaintiff did not purchase the said personal property, nor give to defendant the security promised; that defendant maliciously and without probable cause procured the justice of the peace to issue a warrant for the arrest of plaintiff, and that he was, under the said warrant, arrested and imprisoned for six hours; that the defendant failed to appear or prosecute the said charge against this plaintiff, and the proceeding was finally dismissed and plaintiff discharged from custody.

For the purpose of passing upon the demurrer we must presume that the facts stated in the complaint are true. It may be conceded that the complaint in the justice’s court did not state facts sufficient to constitute a public offense for the reason that the pretenses and promises made by plaintiff were with reference to future events and not as to past or existing facts. There is no question that it is alleged that plaintiff was maliciously prosecuted for a crime without probable cause. He was charged with a felony in obtaining money under false pretenses. The question, then, is as to whether or not a party who institutes a malicious prosecution for a public offense without probable cause can defend himself upon the ground that the complaint sworn to by him, when analyzed under the rules of law, is found to be defective, and does not in fact state a public offense. If such be the rule,