Weinburg v. Somps

VANCLIEF, C. Action for malicious prosecution of the plaintiff on a charge of having bought and received stolen property, for which he was tried in the police court and discharged. The jury returned a verdict for plaintiff, assessing his damages at $3,333, for which sum judgment was rendered. The defendant brings this appeal from an order denying his motion for a new trial.

1. Counsel for appellant contend that the court erred in its instruction to the jury as to what constitutes probable cause for the criminal prosecution complained of. The exception upon which this point rests was taken at the close of the instructions given, and was in the following language: “I desire to except .... to your instruction to the jury as to what constitutes probable cause, and your refusal to instruct, the jury that it is for the court to determine what probable cause is, and not for the jury.” Waiving the indefiniteness of the exception, it is a sufficient answer to this point that the court did instruct the jury as to what would constitute probable cause substantially as requested by defendant’s counsel, and very nearly in the same language. Besides, the court was not requested to instruct that it was for the court, and not the jury, to determine what is probable cause; and consequently did not refuse so to instruct.

2. It is claimed that the evidence does not justify the finding of malice on the part of the defendant in causing plaintiff to be arrested, for the reason that the defendant acted on the advice of a police officer. But the evidence tends to prove that defendant did not state to that officer all the material facts within his knowledge bearing upon the question of malice, and that the officer did not know all such facts. It is, therefore, unnecessary to decide whether the advice, of the police officer would have shielded the defendant from the charge of malice under any circumstances.

3. It is claimed that the court erred in sustaining an objection to a question asked plaintiff by defendant’s counsel on cross-examination. But afterward, when the plaintiff was called in rebuttal, he was fully examined by defendant’s counsel as to the same matter in relation to which the objection had been sustained. This cured the alleged error, if it was error.

[124]. One of the grounds for a new trial was that of newly discovered evidence, viz., the testimony of three witnesses, all residents of the city of San Francisco (the place of trial), whose testimony, as appears by their affidavits, will contradict a part of the testimony of the plaintiff on his own behalf as to special damages to his business. The proposed new testimony contradicts very little of the material testimony of the plaintiff, and probably would not have effected a change of the verdict. But, however this may be, I think it is not made to appear that defendant could not, with reasonable diligence, have discovered and produced at the trial the alleged new evidence. It appears that the trial was commenced on the morning of March 24th, and closed the next day about 1:30 P. M.; that plaintiff was the first witness examined, and that he gave the testimony sought to be contradicted before noon of the first day of the trial; that such testimony of the plaintiff related solely to his relations, dealings, and conversations with the newly discovered witnesses—Hartzman, Bach-man, and Kuhn—who must have known, and very probably remembered, whether plaintiff’s testimony as to his relations, dealings, and conversations with them was true or false; that, after the adjournment of the court on March 24th, defendant was advised by his attorney to find out from Hartzman whether plaintiff’s statements were true or false. Thereupon defendant instructed one of his employees, Morris Bewin, to find Hartzman, and make inquiries as to the truth of plaintiff’s testimony. The affidavit of Bewin states that he was instructed to find Hartzman in the afternoon of March 24th; that about 8 o’clock next morning he found the residence of Hartzman, and then learned that he had gone to Alameda on business, and was not expected to return before evening of that day; that he waited around Hartzman’s house several hours, hoping that he might return sooner than expected, but he did not; that he then returned to the courtroom about noon, when he learned that the evidence in the case was closed. He does not state that he had any difficulty in finding Hartzman’s house, or that he tried to find it before the morning of March 25th. It does not appear that any effort was made to find either of the other two witnesses Bachman and Kuhn until some four or five days after the trial. No subpoena was issued for any of these witnesses, and no application was