148 Va. 1 | Va. | 1927
delivered the opinion of the court.
This is an action by J. H. Stephens, hereafter called plaintiff, against American Railway Express Company, hereafter called express company, for mailieious prosecution. There was a verdict for 18,000.00 in favor of the plaintiff against the express company, upon which the trial court rendered judgment.
■ The prosecution upon which this action is based, resulted from a robbery of $37,663.00 from an express car of the express company, on the Norfolk and Western railroad, between Waverly and Petersburg on the night of December 6, 1923. At the time of the robbery the plaintiff was in the employ of the express company as express messenger and was in sole charge of the car and all the express therein, including the large sums of money which were stolen.
The plaintiff, Reynolds, Merhout and LCngmire, were indicted and tried for the larceny of this large sum of money, upon the theory that he and those charged and indicted with him had conspired to rob the express car. The plaintiff was acquitted of the charge while the others were convicted. The evidence against the plaintiff was entirely circumstantial. It is not necessary to narrate in detail all the circumsta'nces which pointed to the accused as a party to the crime, or to the evidence which tended to exrculpate him, for the reason that we do not have to determine as a matter of law, from all the evidence, whether there was probable cause for the prosecution because it is undisputed and uncontroverted that whatever part the express company, through its officials, took in the prosecution, it acted
Briefly, the facts and circumstances which led to this action on the part of th'e Commonwealth’s attorney were as follows: The robbery took place on a week day when particularly large sums of money were usually sent by the Norfolk banks to the Federal Reserve Bank at Richmond. At Norfolk two bags of money were put by the plaintiff in the key safe and six in the big or combination safe. It was the duty of the money clerk at Norfolk to lock the combination safe, but the plaintiff says he locked it on this occasion and not the money clerk. When the safe was recovered the next day Avhere it had been thrown out of the express car at the time of the robbery, the safe was unlocked and' the combination was in perfect order. The testimony of tAvo safe experts was to the effect that this would have been impossible if the safe had been actually locked. The combination to this safe was known only to the money clerks in Norfolk ahd Richmond. The plaintiff did hot know it.
The plaintiff testified at the criminal trial, and in this case, that he had been in the employ of the express company for over ten years. His record had always been good. In answer to the question to tell what happened he said: “The train left at 4:25 and I checked up the money and Avrote the money up off my waybills; recorded it on the books. The first stop was Suffolk and on arrival at Suffolk the agent there brought a sealed report and another small parcel of money and I re
“He told me which of them pieces to take from the small key sáfe and put in the bag and put two sealed bags of currency and two small parcels and a sealed report and left a sealed package and the letter, all he
“A. That is the agent at Petersburg, H. B. Zirkle.
“Q. Is he one of the defendants in this case?
“A. Yes, sir. While they were coming the baggage porter pulled up and took off two or three trunks and lifted them in the door. They came out and came in the car and I told Mr. Zirkle what had happened.”
The plaintiff had previously made inconsistent statements as to several particulars, notably, as to where he had his gun when confronted by Merhout, but it is unnecessary to go into details as to these here.
Every effort was immediately made by the express company and its officers and agents to discover the perpetrators of the crime. After several months of search throughout the country, information was secured by the police authorities of the city of Petersburg by which some $28,000.00 was found buried on the Sebeck farm, in Dinwiddie county. The farm was occupied by the father-in-law of a man named Merhout who had fled from the State with his entire family. On extradition papers, Merhout was found at Santa Pe, in New Mexico, and brought back to Virginia April 11, 1924. The discovery of the money led to the arrest of a man named Reynolds on March 22,1924. The remaining $9,000.00 has never been recovered.
On his return from Mexico Merhout made a full confession which was reduced to writing and signed by him. That statement in part was as follows: “My
name is Frank Joe Merhout and I have at times traveled under the name of Joseph Sebeck. I am thirty-four years old and my home is about twelve miles out of Petersburg, Virginia, in Dinwiddie county. On December 6, 1923, I entered the express car on Norfolk and Western train between Waverly, Virginia, and Petersburg, Virginia, and held up the express messenger
“I have known J. Fred Reynolds for about one year and know him as ‘Red’ Reynolds and ‘Rat’ Reynolds. About eight months prior to December 6, 1923, J. Fred Reynolds came to me and said that a man named Long-mire, who worked for the American Railway Express Company, knew how much money was being handled on his train and that Longmire would fix it so that we could rob the train. This was in May or June, 1923. Reynolds took me to the depot in Petersburg, Virginia, and pointed out Longmire to me and I can identify him when I see him. We talked about holding up the train for several months at different times. I did not want to do it and Reynolds said that everything would be all right and that I would not have to kill anybody, and that nobody would harm me, and that I would be safe in going into the car and holding up the messenger and getting the money. When I hesitated, Reynolds said he would do it himself. We met several times and it was agreed that I would do it.
“Reynolds took me to Norfolk, Virginia, about one month before December 6, 1923, the date of the robbery, and we watched the messenger on the train. Then the morning before the robbery was pulled I was coming to Petersburg, Virginia, and Reynolds met me. He gave me the string to tie the messenger with and told' me to catch the train about seven o’clock in the morning. Reynolds bought me a ticket and put me on the train. He told me to go to Norfolk and watch the loading of the safes on the train and to catch the train leaving Norfolk at 4:30 P. M., or about that time. Reynolds also told me the best place to get in the car and where to throw out the money.
“The messenger was sitting on a sa)fe, or box, on the side of car. The messenger’s gun was on a box in reach of the messenger. I did not pick up the messenger’s gun at once. I had my gun in my overcoat pocket. The messenger got up and then I picked up his gun and put it in my overcoat pocket. I then said: ‘Boy, how much money you got in here.’ The messenger said he could not tell me how much money he had.
“The messenger had two safes. One was a little safe and the other was a big one. The little safe was open when I went into the car. I told him to put the money from the little safe that was open in a, sack that I had brought with me from home and which I took from my overcoat pocket. As he took the money out of the little safe I saw another gun in the little safe which I took and put in my overcoat pocket. I then took my gun and held it in my right hand and made the messenger put-the money in the sack, which I brought from home. After the money was taken from the little safe and put it in the sack I made the messenger drag the big safe to the door. Both side doors were open. I asked him if he could open the big safe and he said no.
“I then returned to the big safe that was in the doors. I put the sack of money, containing two bags, on top of' the safe and threw the safe from the car door on the-right hand side going west. I got off the car at switch at Poe where train slows up. I got off on the left side-of the ear. After I got off I walked back to where I threw the safe and sack off. It took me about twenty-five or thirty minutes to walk back to safe and money. When I got back I found the safe down at bottom of the-fill a right good ways from the fence in the grass. The-safe was wide open and about six bags of money were scattered over the ground, between the safe and the tracks, several of the bags were bursted open. I had no light. The bags were white and I could see them in the night. I picked up about six or eight bags of money which was all I could find.
“I carried all the bags to the other side of the fence- and buried them in the bushes—about twenty feet from where safe landed on right hand side of track and across, bridge where timber was cut. After I hid the money under the brush I went to road and walked to Peters-burg, Virginia. I walked around looking for Reynolds, who had agreed to meet me. Reynolds said he was-there to meet me but didn’t see money thrown off the-train. So he went back to town.”
On the night of the robbery, in addition to the evidence that the combination safe had been left unlocked, the plaintiff violated two rules of his employer. He left the door leading into the express car from the next coach unlocked, when the rules of the express company required him to keep it locked after dark and notice to this effect was written over the door. He was required by the rules of his employer to keep the pistol, furnished him by it, on his person at all times. Before Merhout's arrest he insisted that he had the pistol in a holster strapped about his waist and that the robber jerked it off him. When confronted by Merhout he admitted that it was laying on a trunk back of him.
Merhout’s confession, especially with, reference to what he had been told about having no trouble with the messenger, together with the plaintiff’s conduct when confronted by Merhout, his failure to offer any resistance, and the other circumstances heretofore narrated, led the Commonwealth’s attorney to suspect that it was, as he'expressed it, an inside job. Upon cross-examination, in reference to the Merhout confession, the Commonwealth’s attorney, F. C. Baugh, was asked this question:
“Q. Do you think that confession was beneficial or not to Stephens?
“A. I think that it was not beneficial to Stephens. That is my opinion of it.
“Q. Will you, pray, give me the grounds for your opinion?
“A. Well; the confession was the first thing that
“Q. The confession made you believe it was an inside job?
“A. Yes, sir.
“Q. How on earth did you get the conclusion that it was an inside job from the confession?
“A. I don’t think the same about that confession that you do, Mr. White—
“Q. Why?
“A. I wish you would let me finish because I have a hard time answering without being interrupted. I suppose you want my opinion about the confession as long as you have started on it.
“Q. I will repeat the question—
“A. I will finish it.
“Q. Do you understand the question?
“A. I think so. If I had read the part of the confession which you seem to be mostly concerned with; that is, the words: T madfe him put the money in’ or T held him up with a gun,’ if I believed that and disbelieved the part of it in which he makes it known more or less it was a fixed job, then I would feel the same way you do about it, but I wouldn’t close my eyes to one-half and open them to the other half.” Later he adds: “The part of that confession or that written instrument with which I had to deal when I was deciding who I would prosecute and which I would try them for, the part of it which puts in my mind that it was a fixed job, along with the other statements made by Merhout to •me, makes me say that you couldn’t possibly convict any man of highway robbery on that confession unless you could tell a jury to believe one part and disbelieve the other part and hide all the other facts.” And in ex
But even if this were not so the express company has a perfect defense because of the fact that all through this unfortunate affair it acted under the advice of counsel, the Commonwealth’s attorney and his assistant, who were in possession of all the facts known to the express company.
In response to the direct inquiry: “Q. Mr. Baugh, state whether or not all of the facts which developed on the trial of these cases which were in the possession of the officers and agents of the American Railway Express Company were narrated to you by those persons before the indictment against J. H. Stephens was brought?”
“A. I don’t know what facts they had in their possession. I know that practically all that I now know about the case and practically all I knew about it when the case was prosecuted in Prince George county came to my knowledge before Mr. Stephens was indicted.”
The whole record bears out this statement.
Whatever the rule elsewhere, it has long been the established rule in Virginia, that where a defendant acts in good faith upon the advice of reputable counsel, after full disclosure of the facts, he is considered to have had probable cause although the advice of counsel may be ‘wrong, and he will not be liable in damages. Virginia-Tennessee Motor Truck Corp. v. Wilson, 140 Va. 260, 124 S. E. 231; Saunders v. Baldwin, 112 Va. 431, 71 S. E. 620, 34 L. R. A. (N. S.) 958, Ann. Cas. 1913B, 1049; Gresham v. American Ry. Exp. Co., 147 Va. 395, 137 S. E. 471.
While the decisions are not uniform, the weight of authority is in accord with the Virginia rule. In Hicks v. Brantley, 102 Ga. 264, 29 S. E. 459, quoting from Lenoir v. Marlin, 10 Tex. Civ. App. 378, 30 S. W. 566, this is said: “ ‘Where a person in good faith makes to the
“We know of no case where it has been held that the advice given by attorneys for the Commonwealth in cases which came under .their supervision was not probable cause for the prosecution, where such advice was to the effect that the circumstances truly stated constituted a violation of law. On the contrary, in such of the States where the question has been decided and which has come to our knowledge, the courts have uniformly held the advice of prosecuting officers to be probable cause to authorize prosecution.” Supra, 102 Ga., at page 273, 29 S. E. 462.
“These facts” (submitted with substantial accuracy to the prosecutor of the pleas of the county) “were not, as seems to us, in any material degree in dispute and it was therefore the function of the court to pass upon their effect in law. The question of the existence of reasonable and probable cause for the prosecution and of the presence of malice should have been decided by the court and should not have been left as it was to the jury.” Magowan v. Rickey, 64 N. J. Law 404, 45 A. 805.
Under the facts of the instant case these authorities are conclusive. We do not have to consider the question of probable cause as if it had been presented upon a conflict of the evidence, nor do we have to consider the question as to whether advice of counsel was sought with an honest purpose of being informed as to the law or whether the attorneys engaged in the prosecution of all four of the parties against whom indictments were
Under these circumstances it is not necessary to consider the various assignments of error in detail. The prosecution was not instituted by the express company, and if it had been, the attorney for the Cbmmonwealth
For the reasons assigned the judgment of the circuit court will be reversed and judgment rendered here for the defendant.
Reversed and judgment rendered.