State Life Ins. Co. of Ind. v. Hardy , 189 Miss. 266 ( 1940 )

In an action of malicious prosecution the guilt of the plaintiff of the crime charged against him as defendant in the criminal prosecution is a perfect defense to such malicious prosecution, and the guilt may be shown by competent evidence no matter when or how discovered. Threefoot v. Nuckols, 68 Miss. 116, 8 So. 335. Applying that principle to this case leads unavoidably to the conclusion that Pritchard was entitled to a directed verdict.

Mrs. Hardy's husband was in default for the 1937 rent in the sum of $280. That amount added to the agreed rent for 1937 made $1780, for the payment of which he gave his note due on October 1, 1937. The note contained this provision: "For the faithful performance by me of all the conditions named in this note, I hereby convey a lien on all crops produced on said land, and also waive any and all exemptions allowed to me by the Constitution and Laws of the State of Mississippi as against the payee or assignee of this note, in regard to the collection thereof, and agree to pay reasonable attorney's fee in case suit is brought to enforce the collection thereof."

The Insurance Company therefore had a lien on the crops produced on the place during 1937 for the payment of the $1780. It is wholly immaterial whether it was a statutory landlord's lien or a conventional lien. Mrs. Hardy removed some of the crops from the farm into another county in violation of her agreement not to do so. Such removal resulted in the criminal prosecution begun by Pritchard. At the time of the removal there was something over $200 in arrears for the rent. After the removal she not only failed to discharge the lien by paying the balance, but refused to do so. There was no conflict whatever in the evidence as to those facts. Mrs. Hardy's only attempt to justify the removal was that there was no lien on the crops for the $280.

Section 1020 of the Code of 1930 provides, among other things, that any person who shall remove or cause to be removed or aid or assist in the removing, from the county where located, any personal property "subject of a pledge, mortgage, deed of trust, lien of a lessor of lands, or lien by judgment, or any other lien of which such party has notice, without the consent of the holder of such encumbrance or lien", and "shall not immediately discharge such encumbrance or lien or pay to the holder of such lien or encumbrance the value of such property in event same is less than the amount of such lien or encumbrance", shall, upon conviction, be punished by fine or imprisonment, or both. The affidavit by Pritchard charging the crime is in this language: "Before me, a Justice of the Peace in and for the State and County aforesaid and in Beat No. 1 of said County, came D.A. Pritchard who on information makes oath that on or about the 30th day of December, 1937, in said State and County, and in the Justice District No. 4 aforesaid Mrs. W.M. Hardy the tenant of the State Life Ins. Co. Inc. removed 5 bales of cotton produced on the lands of said Ins. Co. on which there was a landlord's lien for $258.64 for rent and supplies due and arrears for the year 1937 against the peace and dignity of the State of Mississippi."

It is manifest that Pritchard made an attempt to charge a crime under this statute and failed to do so for reasons at once apparent. Is it the law that a defendant in a criminal prosecution who has been acquitted, although the evidence shows beyond a reasonable doubt that he was guilty, is entitled to maintain an action for malicious prosecution against the instigator of the criminal prosecution based on such acquittal? Surely not. In such a case the instigator not only has probable cause to base it on, but he is absolutely justified both in law and morals. The fact that through inadvertence or mistake the affidavit failed to meet the requirements of the statute has nothing to do with the question. The affidavit was amendable. "It is very generally held that an acquittal is not evidence of malice and that malice cannot be infered from a discharge on nolle prosequi, or for want of jurisdiction of the magistrate before whom the complaint was made, or on the ground that the complaint stated no offense." 38 C.J. 427.

My opinion is that both the Insurance Company and Pritchard were entitled to a directed verdict; Pritchard on the grounds stated above, and the Insurance Company on those grounds as well as the ones stated in the majority opinion. However, since there is not to be a dismissal as to Pritchard, I concur with the majority opinion that the judgment against him should be reversed and remanded for a new assessment on the issue of damages.

Griffith, J., concurs in the foregoing opinion.