Colwell v. Jones

BARNARD, P. J. This an action for damages for malicious prosecution. The parties occupied adjoining “farming” premises within the city limits of Corona. Mrs. Jones lived alone with her daughter and for some 15 months had kept a dog. About 5 o’clock in the morning of the day in question [97]Mrs. Jones and her daughter left the house to do some “chores” and released the dog which had been tied up during the night. A few minutes later they heard a shot from the direction of the plaintiff’s house and then saw the dog come limping home. Shortly thereafter, the plaintiff told the respondent that he had intentionally shot the dog because it had been under his rabbit hutches.

Later that morning the city poundmaster came to dispose of the dog’s remains. When he was told what had occurred he informed Mrs. Jones that there was an ordinance against shooting within the city, and advised her to see the city judge. She did so, and the judge read to her a city ordinance making it unlawful for any person to shoot a firearm within the city limits except “in necessary self defense, or in the performance ■ of official duty.” The judge then asked her “That is what you want to do isn’t it” and when she replied in the affirmative he directed her to the police department for the issuance of the complaint. At the police department she met the city attorney who drew the complaint and a warrant was issued. The plaintiff was arrested and held at the police department for about an hour, when he was released on bail. Thereafter, he was tried before the city judge and was acquitted of the charge.

The plaintiff then filed this action, seeking damages in the sum of $15,315. The trial court found in all respects in favor of the defendant, and the plaintiff has appealed from the judgment.

It is conceded that a criminal proceeding was instituted by the respondent which terminated in favor of the appellant. The material questions raised on this appeal involve the remaining elements of such an action as this, absence of probable cause and malice. It is well settled that in such an action the burden is upon the plaintiff to prove both of these elements; that the malice required must be actual malice, involving the attitude of mind of the person who initiated the prosecution; and that probable cause depends upon the existence of such facts, as then known to the party bringing the charge, which would naturally create in the mind of a reasonable person the honest belief that a crime has been committed. (Richter v. Neilson, 11 Cal.App.2d 503 [54 P.2d 54].)