Threefoot v. Nuckols

Citations

• 68 Miss. 116

Syllabus

<p>1. Action for Malicious Prosecution. Defensa. Quilt of plaintiff. Evidence.</p> <p>In an action of malicious prosecution, the guilt of the plaintiff is a perfect defense, and this may be shown by any competent evidence, no matter when or how discovered.</p> <p>2. Same. Probable cause. Malice.</p> <p>In such case the fact that defendant began the prosecution without knowledge of sufficient facts to create probable cause is not enough to fix his liability. Want of probable cause and malice must both exist to warrant a recovery.</p> <p>S. Same. Evidence. Subsequently discovered facts. Instruction.</p> <p>Accordingly an instruction for plaintiff that in determining the question whether the prosecution was malicious and without probable cause, the .1 ury should only consider the facts tending to show that the prosecution was justifiable, which were in the knowledge of defendant at the time the arrest was made, is erroneous, as excluding a consideration of subsequently discovered facts, which may affect the question of defendant’s malice, or may tend to show plaintiff’s guilt.</p> <p>4. Same. Embezzlement. Instruction. Case in judgment.</p> <p>In an action for malicious prosecution of plaintiff for embezzlement, he admitted that while in defendant’s service he collected, among other sums, two warrants, which he kept and sent to his wife. He claimed to have been robbed of all his collections, but when pressed for a statement he concealed these facts, and, after their disclosure on the trial, claimed that defendant owed him, and that he kept the warrants in payment. The court refused the following instruction asked by defendant: “If plaintiff, without authority, sent the warrants to his wife, and then concealed from defendant that he had collected such warrants, he was guilty of embezzlement.” Ileld, error. Though not precise, it should have been given, either as asked, or in some modified form.</p>