Simmons v. Brinkmeyer — 72 Cal. 486

Majority

p. 486

[No. 11568.

Department One.

June 9, 1887.]

J. R. SIMMONS, Appellant, v. HERMAN BRINKMEYER, Respondent.

Headnote

Malicious Prosecution—Want or Probable Cause—Nonsuit—Indecent Exposure. — The action was brought to recover damages for the malicious prosecution of a charge of indecent exposure. On the trial, a nonsuit was granted, on the ground that the evidence failed to show a want of probable cause for the prosecution. The plaintiff testified that at the time of the alleged exposure he did not know that he was in sight of any one, or at a place where he was likely to he seen, and that he made no improper exposure of his person. He further testified that he supposed the place was one frequently used for the purpose for which he was using it. Held, that the question as to the want of probable cause should have been submitted to the jury.

Appeal from a judgment of the Superior Court of San Bernardino County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

Curtis & Otis, for Appellant.

Rowell & Rowell, for Respondent.

— This is an appeal from a judgment of nonsuit, in an action to recover damages for malicious prosecution. The nonsuit was granted on the ground that the evidence failed to show want of probable cause in the prosecution complained of.

There was no question as to the sufficiency of the evidence as to malice, or that the charge had been dismissed, and we think there was evidence to sustain the charge that the prosecution was without probable cause.

The plaintiff was prosecuted for indecent exposure of his person, and if his testimony in this case be true, there was no ground whatever for making such a charge against him. He testifies that he did not know that he was in sight of any person whatever, or at a point where

p. 487

any one was likely to see him, and in effect also that there was in fact no improper exposure of his person. He further testified that at the time he supposed the place was one frequently used for the purpose for which he was using it, and did not know that the prosecuting witness or his 'family were likely to see him, or be offended by the act. If this be so, the mere fact that he was seen would not constitute a violation of the law. At all events, there can be no doubt that the evidence made a case for the jury.

Judgment reversed, and cause remanded for a new trial.

McKinstry, J., and Paterson, J., concurred.