The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1917-05-19
Saturday Euening Letter
BY Justice J, E. Robinson

was ample security for the small bal
ance, and that the car in possession
of Olson at Medina was worth ten
times the balance. These were mat
tiers of the utmost Importance, be-
cause the security was so ample and
so accessible there was no possible
reason for thinking that Rhoads had
taken his car to Iowa to defraud the
bank. II the car had been completely
destroyed, the security would have
been good for ten times the sum due
the bank. Hence, there was no ex-
cuse for the criminal prosecution.
The purpose of a mortgage and Of
statutes relating to chattel mortgages
is to secure the payment Of an hon
est debt and not to make 1t dangerous
for a person to use his property. The
automobile is made and used for rap
i'd transit and for long drives, and
it's value would be greatly impaired it
there were any danger in crossing
state and county lines.
In this case there &vas not q fair
trial. The record shows several gross
errors manifestly prejudicial to tina
plaintiff. In the charge of the Court
it is said: : i. 80. r
Gentlemen, The plaintiff must
prove to your satisfaction by a fair
preponderance of evidence: ..s.,
(1) That criminal prosecution was
instituted against the plaintiff.
(2) That the defendants In this &C.
ton instituted or procured the insti-
tuition Of the prosecution.
(3) That said criminal prosecution
was terminated by an acquittal or a
discharge of the plaintif, before the
commencement f4he aftion..
These matters were al proven by
record evidence and were not in dis
pute. Hence, there was no reason
for submitting them as matters in dis
pute.
Then 1t was said by the Court:
l charge that II the plaintiff is gull
ty' Of the offense which was charged
against him. that is complete de-
fense.. i . % = g :" W .t''..
81 Nov, tRaf wiz s22ro6fp bf qhe grossest
!kihd,.o The pfaintik Way not ?ySn trial
f6rsany 'Ufehs9 ahd there way no evil
dence whatever to show that He was
guilty. On the contrary, the evidence
showed clearly that there never was
any reason for thinking him guilty.
Then Mr.. Craven, the states attor.
ney, was sworn and against objection
he was permitted to answer a ques-
ton concerning his belief as to the
probable guilt Of Rhoads when the
warrant was issued. His answer was:
II believed it then and still do"
And thus the belief Of the prosecut.
ing attorney was thrown into the
scale against Rhoads.- The error was
about as gross as ii the Judge him
self had given similar testimony.
Then the Court received in evi.
dence the original summons and COM
plant in this action, with notice
Of an excessive lien claimed by tho
attorneys. The, only purpose of that
was to prejudice the jury and the
same is true of all the other testi-
mony regarding one Maloney and his
checks and his conduct. -,
The Court also erred in admitting
in evidence the made:up record of tho
justice Of the peace, which WAS In
effect that while he found the defend
ant not guilty, he thought him guilty.
= In q suit for malicious prosecution
1t was well to remember the terms,
malice and maliciously, import a wish
to. vex, annoy or injure another per-
son or an intent to do a wrongful act,
established either by proof or pre-
sumption of law Comp. Laws, Sec.
1036O.) Good faith or fool innocence
does not justify a wrongful act
Every person is bound to abstain
from injuring the person or property
of another or infringing upon any Of
his rights. Comp. Laws, Sec. 5,942)
26 Cyc.
Judgment reversed and new trial
ordered. n e
May 3, 1917