Stein v. Lacassie

RICHARDS, J.,

pro

tem.

This is an appeal from a judgment in plaintiff’s favor in an action to recover damages for alleged malicious prosecution. The cause was tried before a jury. The evidence in the case may be briefly summarized as follows: During the year 1918, and for some time prior thereto, the plaintiff and the defendant lived upon adjoining ranches near Walnut Creek, in the county of Contra Costa. Plaintiff was of German extraction, but was a naturalized citizen of the United States. The defendant’s husband was of French extraction. She had herself never met the plaintiff and the evidence is in dispute as to whether there had been prior instances of discord between the two families. On April 23, 1918, the dead body of a horse belonging to the defendant was found by her in an inclosure adjoining the land of the plaintiff. The animal had been last seen alive two days before and was then in good health. Upon the discovery of the death of the horse the defendant sent for a veterinary surgeon, who, on the following day, came to the defendant’s premises and examined the body of the animal, cutting it open and finding the intestines punctured, and finding also other evidences of corrosive poisoning, he concluded that the death of the animal had been caused by phosphorus poisoning, and so informed the husband of the defendant, who, in turn, told her. In the colon of the animal the veterinarian also found a dark green substance similar to filaree or clover. On the following day the veterinarian informed Sheriff Veale and his son, who was his under-sheriff, that the horse had been poisoned by phosphorus, and stated his reasons for this conclusion. The

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defendant and her husband tracked the animal to a point near the line fence of the plaintiff and noticed that certain strands of wire upon said fence were broken near the point where the tracks of the animal were to be seen. On April 25, 1918, the under-sheriff and a deputy sheriff came to the defendant’s premises and examined the dead animal and were informed by the defendant that the horse had been traced to a point near the line fence and had been poisoned with phosphorus, and that she thought that the plaintiff might have poisoned the horse. The two officials then made an examination of the carcass, which led them to believe and state that the horse had been poisoned with phosphorus. They also noticed the dark green substance in the colon of the animal, which had the appearance of chopped alfalfa. The officials then went over to the premises of the plaintiff, where they saw some alfalfa in a pig-pen similar to that found in the stomach of the horse. They then interviewed the plaintiff, who made some conflicting statements as to his possession of phosphorus and also as to his knowledge of the fact that the horse of Lacassie was dead. During this interview with the plaintiff the under-sheriff told him that he believed he had poisoned Lacassie’s horse with phosphorus, and upon his return to the Lacassie premises this official informed the defendant as to what he had found upon the plaintiff’s premises and of the fact that he believed, and had stated, that the plaintiff had knowledge of the poisoning of the horse. The defendant, upon learning these facts, desired to have the plaintiff arrested, but the under-sheriff informed her that it would be necessary for her to swear to a complaint and that she had better go to Martinez on the next day and confer with the district attorney and her own attorney regarding the matter. He also on the same evening informed the district attorney of his discoveries and belief. On the following day the sheriff, the under-sheriff, and a deputy sheriff went to the Lacassie ranch, and on their way thither met the defendant and her husband coming to Martinez to swear to a complaint, but the under-sheriff advised the defendant that she had better wait for a chemist’s report before swearing to a complaint. On April 29,1918, several samples from the body of the horse were submitted to a chemist, who, some three weeks later, made a report which was rather negative upon the question