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facts and circumstances as lead to the inference that the party was actuated by an honest and reasonable conviction of the justice of the suit. And, in either case, it must appear that the facts, or so much of them as was sufficient to induce the belief, were communicated to the defendant before he commenced the prosecution or suit.'(a) In revenue and admiralty cases, probable cause for a seizure or a capture is made out when the officer shows such reasons for the act as were sufficient to warrant a prudent, intelligent, and cautious man in drawing the same conclusion. Thus, where the commander of a national vessel was prosecuted for the capture of a vessel on the coast of Africa, on suspicion of her being a slaver, proof that he “acted with intelligent and honorable discretion," in arresting and sending her to this country for adjudication, was held sufficient evidence of probable cause.3 The question of probable cause is composed of law and fact; it being the province of the jury to determine whether the circum

able ground of suspicion, supported by circumstances sufficient to warrant a cautious man in believing that the party is guilty of the offence. Munns v. Dupont, 3 Wash. C. C. 31; Foshay v. Ferguson, 2 Denio, 617.

1 Delegal v. Highley, 8 Bing. N. C. 950 ; Seibert v. Price, 5 Watts & Serg. 438 ; Foshay v. Ferguson, 2 Denio, 617; Bacon v. Towne, 4 Cush. 238. Facts not known to defendant at the time of his procurement of plaintiff's arrest are not competent to show presence or absence of probable cause. Cecil v. Clarke, 17 Md. 508.

2 Shattuck v. Valey, 1 Wash. C. C. 247, 249.
3 Lovett v. Bispham, 2 Am. Law Journ. N. s. 97, 108.

cey v. Emery, 97 U. S. 642. But it as tending to show the defendant's lack of seems, the word “just," or proper,” is probable cause in bringing the prosecution, not equivalent. Van De Weile v. Calla- and therefore it should be shown that the nan, 7 Daly (N. Y.), 74.

defendant knew of such innocence or such Probable cause is such a state of facts, facts when he brought the charge. King in the mind of the prosecutor, as would v. Colvin, 11 R. 1. 582. So, circuinlead a man of ordinary caution and pru- stances of suspicion which would justify dence to believe, or entertain an honest the charge, must be shown to have been and strong suspicion, that the person ar. known to the defendant. Angelo v. Faul, rested is guilty. By Shaw, C. J., in Bacon 85 III. 106. So, it has been held that v. Towne, 4 Čush. (Mass.) 238 ; McGurn facts not known to defendant at the time v. Brackett, 33 Me. 331. The plaintiff of his procurement of plaintiff's arrest are must show that the conduct of the defend- not competent to show presence or absence ant was such as to lead to the inference of probable cause. Cecil v. Clarke, 17 that the prosecution was not undertaken Md. 508. from public purposes. Cecil v. Clarke, 17 The plaintiff in making out his prima Md. 508. The plaintiff may give evidence facie case, must adduce some evidence of of his good character and reputation, and lack of probable cause. Scott v. Shelor, of the defendant's knowledge thereof at 28 Gratt. (Va.) 891 ; Lavender v. Hudthe time of the prosecution, as tending to gens, 32 Ark. 763. And if evidence in show want of probable cause. Blizzard v. rebuttal is given by the defendant, the Hays, 46 Ind. 166.

plaintiff must make out the lack of rea. (a) Proof of the plaintiff's innocence sonable cause by a preponderance of evi. of the charge on which the prosecution dence. Palmer v. Richardson, 70 Ill. was brought, and any facts which tend to 544 ; Calef v. Thomas, 81 Ill. 478. show such innocence, are only admissible

stances alleged are true or not, and of the court to determine whether they amount to probable cause." (a) Regularly, the facts

1 Johnstone v. Sutton, 1 T. R. 545; s. . 1 Bro. P. C. 76 ; Blatchford v. Dod, 2 B. & Ad. 184 ; Ulmer v. Leland, 1 Greenl. 135 ; Stone v. Crocker, 24 Pick. 81 ; Panton v. Williams, 1 G. & D. 504 ; 2 Ad. & El. N. s. 169; Watson v. Whitmore, 8 Jur. 964 ; 14 Law Journ. N. 8. 41 ; Hall v. Suydam, supra ; Horn v. Boon, supra; Newell v. Downs, 8 Blackf. 523; Sims v. McLendon, 3 Strobh. 557.

(a) Taylor v. Godfrey, 36 Me. 525 ; would ordinarily look farther, and inquire Bulkley v. Smith, 2 Duer (N. Y.), 261; for testimony. But this he might fairly Bulkley v. Keteltas, 2 Selden (N. Y.), believe existed short of being told so by 384 ; Carpenter v. Shelden, 5 Sandf. the witnesses themselves. It is not often (N. Y.) 77; Jacks v. Stimpson, 13 Ill

. the case, perhaps, that the public prose701 ; Ash v. Marlow, 20 Ohio, 119; Kid. cuting officers, before making complaint, der v. Parkhurst, 3 Allen (Mass.), 393. have opportunity to converse personally Judge Redfield, in his edition of this book, with the witnesses. But they should gives the following valuable note on this know something more than a mere vague point: “ Having had occasion to consider general report of guilt. They should have the subject of malicious prosecution very information, with such directness and certhoroughly in the case of Barron v. Ma- tainty as to gain credit with prudent men, son, reported in 31 Vt. 189, we take the of the existence and susceptibility of proof liberty of inserting here a large part of the of such facts as show guilt; or which the opinion in that case, as embodying our defendant, upon proper advice, supposed views of the present law on this subject. wonld constitute guilt. This is the fair

“The books upon this point all concur result of the decided cases, and of common in saying that the plaintiff must prove experience upon the subject. (and of course the defendant may dis- “Now, in the class of cases referred to, prove) both want of probable cause and where the guilt or innocence of the act malice. And it is the duty of the court depends upon the motive, the conduct to instruct the jury fully and correctly and declarations of the party, as to other upon the whole case, as the testimony similar transactions about the same time, tends to show the facts.

are always admissible to prove actual “If it be admitted that testimony that guilt. As, for instance, in cases of passthe plaintiff had been guilty of other simi- ing, or having in possession with intent lar offences, or that he was reputed guilty, to pass, counterfeit coin or bills, it is fa. and that this had come to the knowledge miliar law that the prosecutor :nay give of the defendant before he instituted the in evidence other similar offences commitprosecution, has no legal tendency to show ted by the accused about the same time, either probable cause or want of malice in for the purpose of showing his intent in ordinary cases, such as larceny, it must the particular transaction. So also in also be adınitted, we think, that in that cases of embezzlement, and some other class of offences where the gist of the similar offences. And this rule would no crime consists in the bad purpose with doubt extend to the proof of the very which an act otherwise innocent is done, facts which the court in this case told this kind of testimony is admissible, even the jury had no other effect but to mitiupon the question of actual guilt, and gate damages. much more upon that of probable cause. "We should infer that the court below For probable cause is not to be confounded did not regard the question of malice as with actual guilt. Probable cause is only directly and independently involved in the such a state of facts and circumstances as From what of the charge is given, would lead a careful and conscientious the question of malice seems to have been man to believe that the plaintiff was treated as a mere inference from the proof guilty: This can only require that the of the want of probable cause. And so it defendant, upon prudent and careful in- is, prima facie. But nevertheless, it may quiry, shall find the reputed or declared be disproved by a great variety of proof of existence of such facts as indicate guilt, a much lower grade than that which is with reasonable certainty. Mere general requisite to show probable cause. For this reputation will not alone constitute prob- purpose common repute, not only as to able cause.

For a prudent man, in insti- general bad character, but also as to the tuting an important criminal prosecution, particular offence, may, we incline to think,

case,

material to this question are first to be found by the jury, and the judge is then to decide, as a point of law, whether the facts, so

be shown. For this latter is nothing less creet person to act upon it, or it must fail than the declaration of third parties that as a justification for the proceeding, upon the plaintiff was guilty of the particular general grounds. offence, which is declared admissible in “But upon the question of malice the the case of French v. Smith, 4 Vt. 363. law is more tender towards the inexperience It is undeniable that the general belief of or the infirmities or the idiosyncrasies of one's guilt, in regard to a particular offence, parties. Malice is judged of with refer. will influence to a certain extent the con- ence to the party; and whatever fairly duet of the most prudent prosecutor in re- tends to show that he acted with good gard to instituting proceedings. How then faith, and without malice, must be recan it be said that it has no legitimate ceived. bearing upon the question of malice ? We “There is no necessary or even natural think it impossible to so hold, without connection between probable cause and the violating the most obvious principles of want of malice. One may, and often does, human experience and human conduct. 1 act with malice, when there is probable Phil. Ev. 115; Rodriguez v. Tadmire, 2 cause, or may act without malice where Esp. Cases, 720. And general bad repu. there is no probable cause shown, but in tation is often a direct element in the proof neither of these cases is he liable to this of the respondent's guilt, when he offers action. Want of probable cause and mal. proof of good character in exculpation. ice must concur to make the party liable.

“This testimony was admitted to go to Turner v. Ambler, 10 Q. B. 252, Denman, the jury upon the question of damages. C. J. But its chief, if not its only legitimate "It is true, the want of probable cause bearing upon that question, must have de- need not be shown to extend to all the par. pended upon its tendency to rebut the in- ticulars charged. Nor is it any defence ference of malice, and so far as it had any that there was probable cause for part of such tendency, it was, for that very rea- the prosecution. Ellis v. Abrahams, 8 son, competent evidence upon the main Queen's Bench, 709; Reed v. Taylor, 4 issue in the case. It is said, indeed, in Taunt. 615. But the importance of the Hall v. Suydam, 6 Barh. 83, that good questions in this case will justify a more faith merely is not enough to protect the extended examination of the cases upon party from liability for malicious prosecu- the subject, and a more minute discussion tion in regard to a criminal charge. But of the principles involved. from the whole case, it is obvious that this “The history of the common law in reis said wholly in regard to the proof of gard to this action is well stated in the probable cause. For it is found in almost elaborate note of Messrs. Hare & Wallace every book upon the subject, that if the de- to Munns v. Dupont, 2 Wash. C. C. 31fendant, however causelessly, did really 34 ; 1 Am. Lead. Cases, 200. The law is act in good faith and without malice in defined in Farmer v. Darling, 4 Burrows, preferring the charge, he cannot be made 1971, 1974, where all the judges agree liable for a malicious prosecution. The that, to maintain the action, malice (either question of malice is always one of intent, express or implied) and the want of proband open to the jury in this class of cases. able cause must concur. The case of But it is not so in actions of slander. The Johnstone v. Sutton, 1 Term, 510, s. c. 1 law then implies malice, and will not allow Term, 493, 1 Brown's P. C. 76, is also a it to be rebutted by general evidence, but most important and satisfactory case upon only by specific proof, which the law de. this subject, maintaining the general view clares a justification or excuse, as the truth above stated. of the words, or that they were spoken “And it seems to be admitted in all confidentially and upon a justifiable occa- the cases where the question has arisen, sion. So, too, in regard to probable cause, that proof of the want of probable cause the facts being admitted or proved with is not sufficient alone to maintain the acout controversy, it becomes a mere ques. tion, provided the defendant can satisfy tion of law to be determined by the court. the jury that in his conduct he acted in And for this purpose the same proof is good faith, and without malice, which is required in all cases. It is not enough to much the same thing as applied to this show that the case appeared sufficient to subject. For although the word 'malice, this particular party, but it must be suffi- in popular language, is often used to indicient to induce a sober, sensible, and dis- cate anger or vindictiveness, in the law it

found, establish probable cause or not.: (a) But if the matter of fact and matter of law, of which the probable cause consists, are

1 Turner v. Ambler, 10 Ad. & El. n. 8. 252.

is held to import nothing more than bad gard common repute, both of the plaintiff's faith, and, as applied to the subject of ma- general bad character, and of his being licious prosecution, the want of sincere be guilty of the particular offence, good evilief of the plaintiff's guilt of the crime for dence of probable cause. Upon principle which the prosecution was instituted. it should so be held. But in regard to

“The difference, then, between proof common report of guilt of the particular of probable cause and of malice consists offence, we are not prepared to say the de. chiefly in this: that probable cause has cisions justify us in regarding it as evi. reference to the common standard of human dence of probable cause. judgment and conduct, and malice regards “General reputation of guilt, in regard the mind and judgment of the defendant, to the particular offence, may be no sufin the particular act charged, as a malici- ficient ground, in itself alone, for institutous prosecution.

ing proceedings against one in regard to "If the defendant can show that he had criminal offences. But in doubtful cases, probable cause for his conduct, that is, that where the testimony is conflicting, and esfrom such information as would induce a pecially where it is expected to be drawn reasonable and prudent man to believe the from those in the contidence or under the plaintiff guilty of a crime, he instituted influence of the party accused, and where the prosecution, he is not liable, whatever consequently there is difficulty of learning may have been his own personal malice for the full extent of testimony which can be setting it on foot. Probable cause, in this obtained, until the witnesses are put upon sense, is a defence to the action, without giving testimony, and where, of course, a regard to motive. To this point he must preliminary inquiry is often justified partly show that he was told or knew of the ex- upon suspicion, and as an experiment, it istence of specific facts, which either would is no doubt undeniable that the general beconstitute crime, or which upon competent lief in the guilt of the accused in regard advice he supposed would constitute crime. to the particular offence will influence alFrench v. Smith, supra.

most any one in deciding upon the pro“But if the party fail in showing such priety of instituting the prosecution. It ground of action as would have induced is therefore, upon principle, I think, ad. prudent, and careful men to have believed missible as part of the ground constituting in the plaintiff's guilt, and to have insti- probable cause, and is, as we have before tuted the prosecution, he may neverthe, said, in point of character equivalent to less, if he choose, show that in fact he did hearsay, or the declarations of third per. act upon what he at the time regarded as sons in regard to the guilt of the plaintiff, good cause, either from common report or which seems to be admitted everywhere in remote circumstances, such as excited sus. this class of cases. French v. Smith, supra; picions in his mind to the extent of creat. Bacon v. Towne, 6 Cush. 217. In this last ing belief of guilt, although short of case a new trial was awarded, among others, probable canse.

upon the ground that testimony was re“ If this were not so, then want of jected at the trial, that some third party probable cause and malice would be equiv. informed a fourth party of his knowledge alent terms, which the cases show they of a fact tending to show the plaintiff are not. The only distinction which can guilty of the offence for which he was probe supposed to exist in regard to them is, secuted, and requested this to be communi. that one is general and the other is partic- cated to the defendant, which was done beular; one has reference to the common fore the prosecution was instituted. This standard, and the other to the mind and seems to us quite as remote, and rather motive of the defendant. But how can less reliable, as a ground of instituting that mind be reached without receiving criminal proceedings, than that of common proof of every fact which existed, and reputation and belief. which may be presumed to have influenced “But notwithstanding the satisfactory the conduct of the defendant ? If the sub- basis upon which the proposition seems to ject were res integra, I should certainly re- rest, that this evidence of common reputa

(a) Emerson v. Skaggs, 52 Cal. 246 ; Johns v. Marsh, 52 Md. 323 ; Speck v. Judson, 63 Me. 207.

intimately blended together, the judge will be warranted in leaving the question to the jury. Thus, where the question was

1 McDonald v. Rooke, 2 Bing. N. C. 217; s. c. 2 Scott, 359; ante, vol. i. $ 49. And see Taylor v. Willans, 2 B. & Ad. 45.

tion, in regard to the particular offence, is, doubt that to this extent it is admissible upon general principles, admissible, among upon the strictest principles, and for the other things, to show probable cause even, purpose of showing probable cause. It is and especially to rebut the inference of precisely that kind of proof which the ac. malice in the defendant, the decisions do cused might show in his own defence, and not show that such proof has been received its absence must weigh more or less against or offered. This may have resulted from him in regard to the very offence for which two reasons: that the same kind of evi: the prosecution was instituted. To say dence is obtainable by showing the general then that a prosecutor, in calculating the bad reputation of the plaintiff at the time reasonable and probable grounds of insti. of the prosecution ; and also, that we do tuting a prosecution for crime, is not to not always distinguish between the class of take into account one of the very elements proof which is admissible in this action, of the defence, and, in one event, of the when the issue is in regard to suspicion of prosecution also, is simply absurd. It is a guilt and probable cause to believe one proposition admitting of no question whatguilty, and proof of the very fact of guilt. ever, and which could never have been The general rule undoubtedly is, that gen. made a question, had its proper application eral reputation of guilt in regard to a par. to the suhject, in the view just alluded to, ticular offence is not admissible to prove been fully appreciated. And the decided the fact of guilt, and never, unless it be cases, notwithstanding some exceptional upon the question of damages in regard to ones, fully sustain this view. In the elaboreputation in ordinary actions. Hence it rate case of Bacon v. Towne, 4 Cush. 217, is natural to throw this case of actions for this subject is discussed by Chief Justice malicious prosecution into the general Shaw, and the same conclusion arrived at class. These two grounds may account for which we here adopt, citing Rodriquez v. this kind of proof not having been offered. Tadmire, Esp. 721 ; Wood v. United States, Prudent counsel do not often desire to of- 6 Pet. 342, 366 ; 2 Greenl. Ev. § 458. fer testimony in one form when its admis- That it is evidence to rebut malice is besibility is questionable, if there is a safe yond all doubt, if the party can show that ground upon which it is clearly admissible. he believed it. It may not, therefore, be important to de- “That the English courts regard the cide this point here, since it is really in- question of malice as a distinct question, volved in the next point. But if it were and in issue in every case of this kind necessary, we must certainly hold the proof tried upon the general issue, or which may admissible.

always be put in issue by the defendant, “This brings us to the question of the the cases abundantly prove. In Williams admissibility of evidence of the general rep- v. Taylor, 6 Bing. 183, Tindal, C. J., said: utation of the plaintiff, at the time of in- What shall amount to such a combination stituting the prosecution, in regard to of malice and want of probable cause is whether he would be easily induced into so much matter of fact in each individual the commission of any similar offence, for case as to render it impossible to lay down this is the view in which character has any any general rule upon the subject; but proper bearing in regard to crime. If the there ought to be enough to satisfy a rea. offence is one of outrage and violence, sonable man that the accuser had no ground whether the accused is commonly reputed for proceeding but his own desire to injure a peaceable, quiet, and orderly behaved the accused. In Mitchell v. Jenkins, 5 citizen, or a noisy, boisterous, and quarrel. B. & Ad. 588, Denman, C. J., said: 'It is

And if, on the other hand, the still incumbent upon the plaintiff to allege offence is one involving fraud, collusion, and prove malice, as an independent fact. dishonesty, and secret practices, whether they (the jury), however, are to decide, as the man is of a fair, frank, honest, and matter of fact, whether there be malice or outspoken character, or the contrary. not.' Parke, J., said the defendant is exSome of the cases go to exclude all evi- cused, if .acting bona fide under a wrong dence of this kind. Newsam v. Carr, 2 notion of the law, and pursuant to legal Stark. Cases, 69.

advice.' Patterson, J., said, “and the jury “But it seems to us there can be no (are to decide] that there is malice.' And

some one.

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