(211 P.) the claim and refused to make the levy as requested; that when the claim was presented to the board for payment, also when it was disallowed as well as when the case was filed, the county was without funds to pay it or any part of it. The complaint prayed that an alternative writ of mandamus issue directed to the defendants commanding them to audit and allow the claim and to levy for the current year upon the taxable property of the county a tax sufficient to pay it. The alternative writ issued directing defendants to do this, or show cause on October 11th following why they had not done so. [1] The only answer of defendants is a demurrer upon four grounds, three of which, it alleges, appear upon the face of the petition, to wit, that plaintiff has a plain, speedy, and adequate remedy at law; that the claim was barred by limitation long prior to the enactment of chapter 148; that the claim was void ab initio and cannot be revived by legislative enactment, especially chapter 148. The fourth ground is that chapter 148 is unconstitutional and void in that it violates several provisions of the Constitution, to wit: Article 4, § 19; article 2, § 13; article 9, §§ 1 and 3; article 3. The demurrer was sustained and the plaintiff granted permission to amend, but he declined to avail himself of this privilege and announced that he would stand upon his petition. Thereupon judgment that he take nothing by his action and that defendants have their costs was entered, and from this he appeals. ity or legality of his claim against the county for a return of the tax. Before such a result could follow, all the facts required to make it valid should appear. The other facts recited in the act as reasons for its passage do not affect the legality of the claim, but are given for the purpose of showing that a moral obligation against the county was created. [2, 3] In directing the board of supervisors to pay the claim, the Legislature evidently did so upon the theory that it was then unenforceable, whether it had been so from the beginning or not, because there could have been no reason for the enactment of legislation relieving appellant if his claim had been collectible, inasmuch as the enforcement of such rights is the very purpose for which the judicial branch of the government was created. And, besides, the wording of the act itself shows that its passage was prompted by a legislative desire to compel the county to discharge, not a legal, but what was thought to be a moral, obligation resting upon it, because the fact that appellant purchased the cattle, relying upon the statements of the board of supervisors and the treasurer and tax collector made before the sale that the county would guarantee the title to the cattle to whosoever purchased them, did not create a legal liability on the part of the county nor add in any particular to one already in existence, for there was none. These statements were voluntary, having been made in the absence of any statute authorizing them, and if they were the moving cause of appellant's purchase of the cattle any moral obligation to return the tax created thereby did not rest upon the county, but upon those who made them, or upon the owner of the cattle who took them from him, because the county could not be held responsible, either legally or morally, for the unauthorized statements of its officers. It is presumed that the validity of the title acquired by appellant was known to him and the officers equally, because the facts upon which such title was based were matters of public record accessible to every one, and the law applicable to them was presumed to be within the knowledge of all. And the fact that his judgment, or that of those upon whom he relied, as to the validity of his title proved to be incorrect, was chargeable neither legally nor morally to the county, since the statute did not confer upon its officers the right or power to bind it in that way. The county was interested in the cattle only to the extent of the taxes and could give no better title than the law authorized. Knowing that he could get only this title, appellant purchased the cattle voluntarily for a small consideration, less than $4 a head, and took the risk of losing his entire investment or of making a big profit; the result depending upon whether his title prov The order sustaining the demurrer and entering judgment are the assignments relied on by appellant. It does not appear, however, upon which ground of demurrer the court acted, whether one or all; but in the view we take of the matter it is unnecessary to consider any except the third, which raises the question of the validity of appellant's claim against the county. It is the contention of defendants, appellees here, that it was never a valid, legal claim, enforceable in the courts, and it does not appear in the complaint or among the reasons given by the Legislature for directing its payment that appellant attempted within the proper time after its disallowance by the board of supervisors, or at all to enforce its collection by an action against the county. But inasmuch as this was the only remedy then open to him, it must be assumed that he pursued it, though unsuccessfully because of the invalidity of his claim; it being unreasonable to suppose that he would fail to enforce, or attempt to enforce, a just and valid demand of this size and character. The only facts appearing in the record which bear upon the validity of his title are that appellant purchased the cattle at a tax sale and afterward lost them in an action brought against him for their possession, and these are not sufficient when proven to establish the valid-ed good or bad. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Malice.] 3. Malicious prosecution 32- Malice not imputed from want of probable cause. In an action for malicious prosecution, malice and want of probable cause are distinct elements of the cause of action, and the former is not imputed to defendants from want of probable cause alone, since the prosecution may have been instituted in the belief it was proper, though the facts were insufficient to warrant such belief in a reasonable mind. 4. Trial 252(20)—Instruction as to damages unsupported by evidence improperly given. [4, 5] If the county were morally obligated [ enforced, crime suppressed, and the guilty to return this tax, there could be no question brought to justice. of the right and power of the Legislature to direct the board of supervisors of Yavapai county to pay appellant's claim. Fairfield v. Huntington, 23 Ariz. 205 Pac. 814. And this would be true notwithstanding its enforcement in the courts had long since been barred by the lapse of years, because limitation does not destroy a moral obligation nor interfere with the right of the Legislature to satisfy it. But inasmuch as the county was under neither a moral nor a legal obligation to pay it, the use of the public funds for that purpose is prohibited by section 7, art. 9, of the state Constitution, which provides that neither the state nor any county, city, town, municipality, or other subdivision thereof shall ever make any donation to any individual, association, or corporation. It is clear, therefore, that a legislative act directing the board of supervisors to satisfy this claim, or to levy a tax for that purpose, has neither a moral nor legal basis, and that its payment from the county treasury would amount to a mere donation. Hence chapter 148, Session Laws of 1919, contravenes this section of the Constitution and would not justify the board of supervisors in allowing appellant's demand. It follows that the judgment of the lower court denying the relief prayed for was propIt is therefore affirmed. er. ROSS and LYMAN, JJ., concur. LEEKER et al. v. YBANEZ. (No. 1834.) (Supreme Court of Arizona. Jan. 15, 1923.) 1. Malicious prosecution 72(4)-Instruction on malice held erroneous. An instruction that the malice necessary to sustain an action for malicious prosecution is not express malice, but is the willful doing of an unlawful act to the prejudice of another, so that, if the jury found defendants did not have probable cause for the prosecution of plaintiff, malice need not be expressly proven, but may be inferred from lack of probable cause, was erroneous as failing to give a jury a correct statement of the law relating to malice in actions of that character, and as misleading the jury to believe that malice was to be imputed to the defendants from want of probable cause alone. 2. Malicious prosecution 30-"Malice" institution of prosecution from improper motives. Malice as a factor in an action for malicious prosecution of a criminal charge against plaintiff is manifested by furthering the charge from improper motives; that is, from some motive other than a desire to have the laws In an action for malicious prosecution, an instruction defining actual and exemplary damages was bad in so far as it included in the actual damages peril of life or injury to health, when there was nothing in the record to warrant an allowance for either. 5. Trial 244 (3)-Instruction emphasizing portions of the evidence held erroneous. In an action for malicious prosecution, where the evidence as to probable cause was conflicting, a charge stating hypothetically the conditions under which the jury might find probable cause or the lack of it, but which emphasized portions of the evidence, was erroneous as stating the effect and weight of the evidence, which should have been left fully to the jury. Appeal from Superior Court, Santa Cruz County; A. G. McAlister, Judge. Action by Jesus Ybanez against S. Leeker and another to recover damages for malicious prosecution. Judgment for plaintiff, and defendants appeal. Reversed, and remanded for new trial. Leslie C. Hardy and Duffy & Purdum, all of Nogales (Kingan, Campbell & Conner, of Tucson, of counsel), for appellants. Frank J. Barry and Warren Lee Kinder, both of Nogales, for appellee. LYMAN, J. The plaintiff, Jesus Ybaņez, recovered judgment against S. Leeker and S. Leeker Dry Goods Company, appellants, in an action of malicious prosecution. From that judgment an appeal is prosecuted upon three assignments of error, all relating to the instructions to the jury. The first instruction complained of reads as follows: "The malice necessary to sustain an action for malicious prosecution is not express malice -a specific desire to vex or injure another from malevolence or motives of ill will-but the willful doing of an unlawful act to the prejudice or injury of another. So, if you find from the evidence under the instructions which I shall give you with reference to probable cause that the defendants did not have probable cause for the arrest and prosecution of the plaintiff, then I For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (211 P.) instruct you that malice need not be expressly [alization or with particular reference to the proven, but may be inferred from lack of prob- facts of this case, it fails to give to the jury able cause." a full and fair statement of the law relating to malice as applied to actions of this char Before considering this portion of the in-acter. structions, it should be noted that preceding it the court had clearly and correctly outlined the issues involved in the action, and the basis upon which the plaintiff was entitled to recover, if at all, by stating the various elements which enter into an action for malicious prosecution. The jury was also told of the interest of the public in the prose cution of crime. This particular instruction directs the attention of the jury to the subject of malice, of what it is constituted, and how it may be made to appear by the evidence. [2] Malice is primarily a state of mind and heart, variously prompted and variously manifested, and therefore variously defined in the books. That malice which is a factor in an action of malicious prosecution arising from criminal cases is manifested by furthering some charge of crime from base and improper motives; that is, from some motive other than a desire to have the laws enforced, crime suppressed, and the guilty brought to justice. Such improper motive may spring from personal hatred and ill will toward the person charged with crime, the pursuit of some selfish advantage, or from [1] The first clause, "The malice necessary to sustain an action for malicious prosecu- any desire or impulse other than the one letion is not express malice, a specific desire gitimate purpose-the enforcement of the to vex or injure another from malevolence law. or motives of ill will," is a statement of what malice is not, and a direction to the jury as to what they are not to look for in the evidence in determining whether or not plaintiff was actuated by malice. If this clause is taken merely as a generalization, it is not correct, because more often than otherwise malice which is involved in an action of malicious prosecution is essentially what is here said it is not. The remainder of this sentence reads as follows: "But the willful doing of an unlawful act to the prejudice or injury of another." This is a positive statement to the jury of what it is to understand by the term "malice." As a general statement this is not altogether wrong, and seems to follow in the main the definition given by Greenleaf, but leaving out some words which make the Greenleaf definition clearer and easier to understand. No explanation is added as to the character or the nature of such an unlawful act as is referred to in this clause, unless it is to be found in the following sentence, which reads as follows: "So, if you find from the evidence under the instructions which I shall give you with reference to probable cause that the defendants did not have probable cause for the arrest and prosecution of the plaintiff, then I instruct you that malice need not be expressly proven but may be inferred from lack of probable cause." This sentence begins with the word "so," apparently used in the sense of "therefore" to introduce a conclusion from the preceding sentence containing a statement of what malice is and also as to what it is.not. The close and logical connection between the term "unlawful act" and the term "probable cause" inevitably would leave the inference that the lack of probable cause was the unlawful act which constituted the malice referred to in these instructions. As a gener 211 P.-55 [3] Besides the objections already noted to this instruction, the last clause of it, even if standing alone, is a form of statement condemned as an instruction to the jury in an action of this sort in the case of Griswold v. Horne, 19 Ariz. 56, 165 Pac. 318, L. R. A. 1918A, 862, where the law relating to malicious prosecution is treated at considerable length by Chief Justice Franklin, with many citations and elaborate reasoning. It is there explained that, though this particular clause may be construed as a correct statement of the law, it is nevertheless in such a form as to make it an improper guide to a jury in an instruction without further elaboration or explanation. In the case of Hanowitz v. Great Northern R. Co., 122 Minn. 241, 142 N. W. 196, the necessity of keeping before the jury the distinction between malice and want of probable cause is stated in the following terms: "It is well established that in the action of malicious prosecution both malice and want of probable cause must be proven by the plaintiff as distinct issues. The malice which is the essential element of malicious prosecution is not, like the malice essential in libel, slander, and false imprisonment, a mere fiction of the law; it is a state of mind to be proved as a fact. Want of probable cause may exist without malice. The reason is plain. The information on which a defendant acted may have induced him to act in the utmost good faith, so that his mind is entirely free from malice, and yet it may not be sufficient to constitute probable cause, for the test of probable cause is not the belief induced in him, but the belief induced in the mind of a reasonably prudent man. The jury may, in a proper case, infer malice from want of probable cause, but they are not bound to infer malice in every case where want of they may draw is one of fact, and not of law." probable cause is proven. The inference which In the instruction which we are now considering malice and probable cause are so associated and woven together in apparent de pendence one upon the other that the jury | semblance the defendant had been informed by could hardly have failed to suppose that, hav- one of the clerks of the El Paso store that ing found that there was want of probable cause for the prosecution, malice was from that fact alone to be imputed to the defend ants. [4] The second assignment of error relates to an instruction, which is as follows: "The court instructs the jury that there are two kinds of damages, which they may award the plaintiff in this action, namely, actual or compensatory damages and exemplary or punitive damages. plaintiff was 'getting away with an overcoat,' and that plaintiff had offered to pay the defendant Sam Leeker for said overcoat in consideration of his not being arrested and prosecuted falsity of such statement of plaintiff that he for the larceny thereof, and that the truth or had purchased the said overcoat in said La Reforma store could not with reasonable effort have been ascertained by the defendants." The court, having found a conflict in the evidence as to probable cause for the prosecution, undertook very properly to instruct the jury by means of a hypothetical statement of the evidence bearing upon that question how it might arrive at a conclusion as to whether or not there was probable cause for the prosecution; but in doing so in this "Actual or compensatory damages include loss of time, peril of life or liberty, injury to reputation, character of health, mental suffering, general impairment of social standing, and expenses, including attorney's fees incurred or paid by the plaintiff about the original criminal proceeding, if reasonable and necessary, so far as they are shown to have been an actual and instruction portions of the evidence are emproximate consequence of the act complain-phasized, and the effect and weight of such evidence is given. That should not have been done. The question as to whether there was lack of probable cause shown should have been left fully to the jury, unless the court found the evidence relating to it undisputed. ed of. "Exemplary or punitive damages are those given in addition to compensation for a loss sustained, in order to punish or make an example of the wrongdoer. Exemplary damages are such damages as are in excess of the actual loss and are allowed where a tort is aggravated by evil motive, actual malice, or oppression." There seems to be nothing in the record indicating that the plaintiff is entitled to recover anything from peril of life or injury to health. To that extent at least the instruction is bad. [5] Assignment of error No. 3 is based upon an instruction as to probable cause, reading as follows: The case is reversed, and a new trial directed. ROSS, J., concurs. MCALISTER, C. J., being disqualified, took no part in the decision of this case. CASTON V. STATE. (No. 530.) (Supreme Court of Arizona. Jan. 23, 1923.) "The court instructs you that the mere fact that the overcoat being worn by plaintiff, at the time of his arrest, resembled overcoats carried in stock in the El Paso store, owned by the de-. fendant S. Leeker Dry Goods Company, did not of itself justify the defendant Sam Leeker in causing the arrest and prosecution of plaintiff for the larceny of said overcoat, even though said Sam Leeker suspected or even believed said overcoat to have been stolen from said El Paso store, unless such suspicion or belief was based on other facts than such resemblance alone. And if the plaintiff, prior to his arrest, informed said defendant Sam Leeker that he had purchased the said overcoat some days previously in the La Reforma store, two doors from said El Paso store and on the same side of the street, and if the said Sam Leeker or his codefendant failed to investigate the truth or falsity of this information and caused the arrest and prosecution of plaintiff without any such investigation, and solely because of the resemblance which plaintiff's overcoat bore to overcoats carried in stock in said El Paso store, no proof having been offered of the theft of an overcoat from the said El Paso store, then I instruct you that no probable cause existed for the arrest and prosecution of plaintiff for the larceny of said overcoat. But such resemblance may be considered by you, if you find from the evidence that in addition to said re 2. Assault and battery 67—To justify right of self-defense against assault, apprehension of danger must be such as would incite fear of reasonable person. assault, the rule is that the apprehension of To justify one's right of defense against an danger must have been such as would have incited the fears of a reasonable person. 3. Assault and battery 67-Rule justifying defense against attack stated. Under Pen. Code 1913, §§ 180, 181, where a person has reasonable grounds to apprehend a design to do him great bodily injury, and there appears imminent danger of such a design being accomplished, he may defend himself and use all necessary force to that end; he cannot, however, from bare fear of receiving such bodily injury justify his attack, but the circumstances must be sufficient to excite the fears of a reasonable person, and he must have acted under the influence of such fears alone. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (211 P.) 4. Assault and battery 96(3)—Instruction to donate. It is not necessary to set out the held erroneous as making the judgment of jury standard in determining accused's rights of defense. contentions of either of the parties. It is enough to say that they suddenly became involved in a fight, McBeath using his fists and appellant using a knife, described as a Barlow, with a blade 1 to 11⁄2 inches long. As usual, each claimed the other used the first angry and insulting words and made the first demonstration of violence. Defendant admitted cutting McBeath several times dur In a prosecution where defendant was convicted of assault with a deadly weapon, an instruction that, before accused was justified in striking back, the facts and circumstances under which he formed the belief that he was in danger of sustaining great bodily harm "must have been such as to cause you [the jury] to believe that defendant * * * would be jus-ing the fight, but that he did not do so until tified in so believing," held erroneous as mak- the latter had dealt him a severe blow with ing the judgment of the jury the standard of his fists. He claimed he had been recently determining accused's right of self-defense overcome with heat and was not physically against an attack on him. able to defend himself otherwise. [1-3] The verdict of the jury on the facts is conclusive, if the trial was otherwise regular. Defendant, however, insists several prejudicial errors occurred in the course of the trial. The first is that the court gave the jury the incorrect rule, in the instruction quoted below, by which to gauge or measure defendant's right of defense against McThe instruction is as fol The act of defending oneself, is never an assault, Pen. Code 1913, § 207, providing that "an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Hence an instruction "before a person can justify assault-Beath's attack. ing another on the ground of self-defense" is subject to the criticism that it characterized the act of self-defense as an assault. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Assault.] * # lows: "Concerning self-defense, I charge you that as a matter of law no one has the right to kill another, even in self-defense, unless such killing is apparently necessary for such purpose. Before a person can justify assaulting Appeal from Superior Court, Yuma Coun- another with the intention of taking his life ty; Fred L. Ingraham, Judge. W. B. Caston was convicted of assault with , a deadly weapon, and appeals. Reversed and remanded for a new trial. on the ground of self-defense, he must, when attacked, employ all reasonable means within his power, consistent with his safety, to avoid the danger and avert the necessity of killing or inflecting great bodily harm. The law enjoins upon the defendant who pleads self-de Glenn Copple, of Yuma, and Earl Anderson, fense to show that he had no other probable of Phoenix, for appellant. The Attorney General, for the State. ROSS, J. The defendant was convicted of the crime of assault with a deadly weapon, upon an information charging him with an assault, with intent to commit murder, upon one Alex McBeath; the instrument used in such assault being described as a deadly weapon. He was sentenced to the state prison for a term of not less than two nor more than four years, and, being refused bail by the lower court pending the appeal, has been confined in the county jail of Yuma county since his conviction. means of avoiding the danger to himself, or of losing his own life, or sustaining serious bodily harm, than to act as he did in this instance. Because the defendant who invokes the plea of self-defense must not only have believed that his life was in danger or that he was in but the facts and circumstances under which danger of sustaining some great bodily harm, he formed that belief, or come to that conclusion, must have been such as to cause you to believe that the defendant, situated as he was at the time, would be justified in so believing." It will be noticed that the italicized words make the judgment of the jury the standard. In other words, the defendant's right to defend himself is predicated upon what the jurors, if circumstanced as he was, would have done, or felt it necessary to do, in self-defense. The evidence discloses that defendant and McBeath were neighbors, living upon adjoining farms, about 21⁄2 miles south of Gadsden in Yuma county, and until the morning of the trouble were on friendly terms. This partic- We think the correct rule is that the apular morning the defendant went to Mc- prehension of danger must have been such as Beath's home, and for almost an hour he and would have incited the fears of a reasonable McBeath visited with each other, while the person. Under the statute (section 180, Penal latter was doing chores around his yard and Code), where a person has reasonable grounds premises; the subject-matter of their con- to apprehend a design to do him great bodily versation being about a proposed community injury, and there appears imminent danger road that had been laid out along one side of such a design being accomplished, he may of McBeath's 40 acres, its width, and, partic- defend himself and use all necessary force ularly, the number of feet McBeath ought to that end. He cannot, however, from bare For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |