3 Haw. 85 | Haw. | 1868
The opinion of the Court was rendered by
This was a bill of exceptions to a nonsuit ordered by the presiding Judge of this Court at the last July term. The defendant had procured the arrest, indictment and trial of the plaintiff, on a charge of embezzlement. The plaintiff introduced in evidence the records of the proceedings before the committing magistrate, and at the trial in the last April term, also the testimony of J. Montgomery, David Dayton, Kailiuli, Pakeokeo, W. C. Parke, R. G. Davis, J. W. Martin and W. C. Jones, and closed his case. The Court then, on motion of the defendant’s counsel, ordered a nonsuit, on the ground that the plaintiff had failed to show want of probable cause.
• This case presents two questions, viz. : had the presiding Judge a right to decide whether there was or was not probable cause for the prosecution, and, provided he had such right, did the facts authorize the judgment given ?
It was never doubted that want of probable cause lies at the foundation of this action, and must be affirmatively shown by the plaintiff to entitle him to a verdict, and that the existence of probable cause is an effectual bar to the action. But the plaintiff’s counsel urge that this is a mixed
It is equally well settled that where there are no facts in controversy material to the issue, the Court should decide whether the facts proved do or do not show want of probable cause, and may properly order a nonsuit if they do not. Davis vs. Hardy, 6 B. & C., 224. Cloon vs. Gerry, 13 Gray, 201. Masten vs. Deyo, 2 Wend, 429. Kidder & ux vs. Parkhurst et al., 3 Allen, 295. Of course the case is still stronger if the evidence offered not only fails to show want of probable cause, but should prove that such cause did exist. In such case, it would be the duty of the Court to instruct the jury to find a verdict for the plaintiff on the facts proved, whatever they might find as to the disputed but immaterial facts.
“Probable cause is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person arrested is guilty.” Shaw, C. J., in Bacon vs. Towne et al., 4 Cush., 239. In Broad vs. Ham, 5 Bing., N. C., 722, Tindal, C. J., says: “There must be a reasonable cause, such as would operate on the mind of a discreet
The facts are admitted, or are not controverted, that the defendant’s firm, Chulan Bros., sold the plaintiff goods at cost, on an agreement that they should have ten per cent, above on sales, and that he should buy only of them; that they sent their agent, Ah Kim, to Hanapepe, where the plaintiff' kept his store, and that Ah Kim, pursuant to their instructions, took an account of stock and cash on hand ; that the plaintiff' first complained to the local magistrate at Waimea that Ah Elm was trespassing on his property, but upon the day fixed for the hearing, as the magistrate testifies, had come to an understanding with Ah Kim, transferring the store and contents to him; that this agreement was written by the magistrate, and signed by the plaintiff and Ah Kim, March 11th; that Ah Kim gave the plaintiff a letter to Chulan Bros., dated March 3d, informing them that he had counted the goods and cash, and paid to the plaintiff' $86.37 to deliver, together with the letter and a book containing the inventory of stock, to the defendant; that the book and letter were delivered by the plaintiff to the defendant at Honolulu, and in reply to the defendant’s demand for the money, the plaintiff' put him off from time to time, admitting that he had the money, and saying at one time that he had forgotten it, and finally, on going with the defendant to Judge Austin, claiming part of the money as due him on set