Starkweather v. Eddy

SHENK, J.

This action is one for malicious prosecution growing out of the acquittal of the plaintiff of a charge brought by the defendant of assault with a deadly weapon. The case was tried before the court without a jury, judgment being rendered in favor of the defendant, and the plaintiff appeals.

The assault charge arose out of the following facts: The plaintiff was a large stockholder in the Minarets Mining Company, a corporation, whose principal properties are located in the high Sierras in Mono and Madera Counties.

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For several years prior to the events about to be recounted, the plaintiff and the defendant had been connected with opposing factions, both sides being desirous of gaining control of the corporation. Early in 1921 the directors of the corporation had appointed the defendant president and general manager. This appointment the plaintiff contended was not valid for the reason that the board of directors making the appointment had not been validly elected.

At the mining property, it appears, there were two cabins, one known as the lower cabin close to the workings of the mine, and the other known as the upper cabin, being some distance from the mine. The upper cabin had been formerly owned and occupied by the plaintiff, but had later been sold to the corporation. Even after such sale the plaintiff on occasions had occupied the cabin either while doing assessment work at the mine, or while running a guide business in the mountains.

It appears that the 1920 assessment work at the mine had not been completed, and that in order to preserve the property that work, under the law, had to be started by July 1, 1921. About the middle of May, 1921, the plaintiff had taken possession of the upper cabin. There can be no doubt that he intended to relocate the claims for himself and friends if the corporation failed in its assessment work. In addition to this purpose the plaintiff had occupied the cabin with the intention of carrying on his guide business, having brought his horses and sleds with him.

On June 13, 1921, between the hours of 8 and 9 o’clock A. M., the defendant, accompanied by several employees, arrived at the upper cabin, intending to start on the assessment work. They noticed unmistakable indications that the cabin was occupied, but no one answered their calls and knocks. As a matter of fact, the plaintiff and his son were in the cabin, but for their own reasons did not choose to answer. The defendant and his men then proceeded to a near-by barn and returned to the upper cabin a little later. One of the defendant’s men was at that time carrying a box containing twenty-five pounds of dynamite, and another was carrying a long coil of fuse. All this could be. seen by the plaintiff from the cabin. Upon arriving in front of the cabin one of the men, and probably the defendant himself, suggested that the dynamite be put under