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Dwain v. Descalso

66 Cal. 415 Court Department One. Decision date 1885-02-09 Docket No. 8,548 English

Delivered by *416 Ross, J.

Contents

Majority

p. 415
[No. 8,548.
Department One.
February 9, 1885.]
JAMES E. DWAIN, Appellant, v. LUCO DESCALSO et al., Respondents.

Headnote

Malicious Pbosecution—Probable Cause—Honsuit.—The plaintiff, on the trial of an action for malicious prosecution, must show want of probable cause, or a nonsuit should be granted.
Id.— Prosecution Instituted upon Statements of Child.—A prosecution instituted upon the apparently truthful statements of a child eleven years old, who claimed to have seen the plaintiff commit the offense with which he was subsequently charged, is not without probable cause.
Appeal from an order of the Superior Court of the city and county of San Francisco granting a new trial.
Action for malicious prosecution and false imprisonment against the respondent, and one R. D. Marshall, a police officer. On the trial a nonsuit was granted as to Marshall. A verdict was rendered against the defendant Descalso. A motion for a new trial was subsequently made by him and granted. From this order the plaintiff appeals. The further facts are sufficient' ly stated in the opinion of the court.
C. V. Grey, for Appellant.
Stanly, Stoney & Hayes, for Respondents.

This is an action for malicious prosecution, and it was, of course, necessary for the plaintiff to show on the trial a want of probable cause for the prosecution. The evidence with respect to this question was without conflict, and it showed clearly that neither Descalso nor the officer acted in the premises without probable cause. They proceeded upon the statement of a child eleven years old, who claimed to have seen the plaintiff commit the offense with which he was subsequently charged. The child was closely questioned by the officer, and there appearing no reason to doubt the truth of her statement, he made the arrest. The court should have granted the defendant’s motion for a nonsuit, but having failed to do so, and subsequently granted the defendant’s motion for a new trial, the order must be affirmed. So ordered.

McKinstry, J., and McKee, J., concurred.

Hearing in Bank denied.