Ruffner v. Hooks

Malicious prosecution — Probable cause — Malice. In. order to maintain an action for malicious prosecution it must appear that the prosecution was instituted without probable cause and that the defendant was actuated by malice. Malicious prosecution — Probable cause as defined — Malice. Where a probable or reasonable cause exists, no malice, however distinctly proved, will make defendant liable. Where by the plaintiff’s own testimony he may have been guilty of manslaughter and, if the testimony of others be true, may have been guilty of murder, the law will require no person to pay damages for instituting a prosecution therefor, no matter how malicious the motive prompting it. In such a case the question should be disposed of by the court and not left to the jury.

Appeal, No. 24, April T., 1896, by defendant, from judgment of C. P. Armstrong Co., March T., 1892, No. 344, on verdict for plaintiff. Trespass for malicious prosecution. Before Rayburn, P. J. Verdict for plaintiff for $200. The following facts are stated from the opinion of the Superior Court: On Sunday, September 26,1866, a young man named Shields A. Rosensteel, about seventeen years of age, went upon the premises of Christopher Ruffner, father of the plaintiff, and was taking chestnuts from a tree near the Ruffner dwelling, whereupon the plaintiff, then a lad of twelve or thirteen years, remonstrated with Rosensteel and forbade him tailing the chestnuts ; a dispute followed, and stones were thrown, one of which struck Rosensteel on the neck and felled him to the ground, where he died within a few minutes. The next day, William M. Rosensteel, father of the deceased, went to Ruffner’s, and after talking the matter over with the plaintiff’s father, concluded he would not begin a criminal prosecution, and took his boy’s remains away. There the matter was allowed to rest until October 31, 1891, over twenty-five years, when William M. Rosensteel, made information against the plaintiff, charging him with the murder of Shields A. Rosensteel, upon which the plaintiff was held for trial under bail until December 9, 1891, when the indictment against him was ignored by the grand jury; and on the 18th of February following, the present action for malicious prosecution was commenced. It also appears from the evidence that on May 5, 1890, the plaintiff was appointed guardian of A. M. Meyers and A. G. Meyers, minor children of William Meyers, deceased; and the defendant, having taken stone from the land of these children, the plaintiff in his capacity as guardian brought suit against him and recovered their value; and because of this, the defendant afterward induced William M. Rosensteel to begin the prosecution for murder. Under the evidence the controlling question is whether there was probable cause for the prosecution; the court left that to the jury, and they found a verdict for the plaintiff. On the trial, the plaintiff was sworn in his own behalf, and testified as follows concerning the death of Rosensteel: Q. State to the jury, as far as you recollect, what the circumstances of that trouble was. A. Yes, I can. Why, we was— a lot of us boys was together, and there was some boys there taking chestnuts; we told them to leave the chestnuts by the house there and go to the lower tree, and they came down off the trees and commenced to pound us with stones, at one another, so we commenced to throw back; somehow or another, Shields Rosensteel was killed there, whether I did it or not I cannot tell; I did not see the stone strike him. On cross-examination he testified as follows : Q. Now how many stones did you throw there that afternoon ? A. I don’t remember how many I-did. Q. Don’t you know you hit him with one ? A. No, sir, I don’t know it. Q. Do you say you did not hit him ? A. No, sir, I don’t say so; I say I don’t know. Q. Was there anybody else threw stones but you? A. O yes. Q. Who was that? A. These other boys. Q. You say they were all throwing stones ? A. Yes, sir. Q. Did you deny killing him at that time ? A. No, sir, I think not; I did not know it any more than I do to-day; I said so then and I do now, that I don’t know whether I did or did not kill him. Q. How many stones did you throw that day ? A. I tell you I don’t remember. Q. After you threw the last stone, what occurred ? A. I don’t know whether I threw the last one that was thrown or not. A. I am speaking of the last time you throwed. Did not Rosensteel drop right down when you throwed the last stone you threw? A. No, sir, I think not. Q. What did you do then ? A. He was killed there; I think he was standing yet. Q. How long did he stand afterwards ? A. I think quite a while. Q. How long ? A. I don’t remember how long. Q. Then you don’t know whether he stood up at all or not, after you threw the last stone? A. Not just exactly, I can’t say whether he did or not. Q. Did any one else throw a stone after you threw the last one ? A. I don’t know whether they did or not. Q. Now, Mr. Ruffner, what was Rosensteel’s position, how was he standing when you hit him ? A. O, I don’t remember. Q. Whereabouts was he struck with the stone ? A. Well, I did not see where the stone struck him; no, I would not go to see; I walked up shortly afterwards up to where lie was. Q. Looked at him? A. Yes, sir. Q. What was his condition? A. He was lying there on the ground. Q. How long after he was struck until you walked up to see him ? A. I don’t know, it might have been two or three minutes. Q. Where did the other boys go ? A. They run away. Q. They run as soon as the stones begin to fly? A. O yes. Q. How long did the stoning match continue ? A. Well not very long, four or five minutes. Q. Did anybody throw a stone at you? A. O yes. Q. Who? A. I don’t remember. Q. Did Rosensteel ? A. I don’t remember whether he did or not, but I think he did. Witnesses were called on the part of the defendant, one of whom said he was present and saw the plaintiff throw the stone at Rosensteel which hit and killed him, and that Rosensteel did not throw any stones at all. Other witnesses testified to alleged declarations of the plaintiff admitting that he killed Rosensteel. Errors assigned, among others, were to portions of the charge, reciting same; to refusal of binding instructions and to leaving the question of probable cause to the jury.