Barhight v. Tammany, 158 Pa. 545

Barhight v. Tammany

158 Pa. 545 | Pa. | 1893

Opinion by

Mr. Justice McCollum,

On the 30th of, December, 1889, Charles W. Tammany, appellant, made an information before an alderman of the city of Wilkes-Barre, in which he charged Lucinda Barhight, appellee, with the larceny of certain property belonging to him, to wit: “ one cupboard and about twenty-five yards of carpet of the value of about thirty dollars.”, A warrant was issued on which the appellee was arrested and brought before the magistrate the same day. As the appellant was not present the hearing was postponed and the appellee committed to the county prison, where she was detained three days, when she was again brought before the magistrate and, as appears by his record, was “ discharged for want of sufficient evidence.” The appellee then brought this action against the appellant for malicious prosecution, and recovered a judgment against him in the court below for one hundred dollars, from which he appealed. It is not-necessary, in this opinion, to refer in detail to the evidence introduced by the appellee to sustain her averment that the prosecution against her was instituted by the appellant maliciously and without probable cause, or to make a like reference to the evidence submitted by him in answer to it. All the specifications of error are founded on the instructions to the jury, and if these were adapted to the evidence in the case and in accord with the well settled principles which govern actions *550of this character, the judgment must be affirmed. The instructions in relation to the burden of proof- were in harmony with these principles and such as were demanded by the evidence. The proceedings before the magistrate cast upon the appellant the burden of showing probable cause for charging the appellee with the crime of larceny, and what was said in reference to this burden by the learned judge of the court below in his general charge and his answers to the points submitted to him were directly in line with the decisions of this court. When one accused of crime has been discharged by the examining magistrate and brings an action for malicious prosecution against the prosecutor, the burden of proving probable cause is on the defendant: Smith v. Ege, 52 Pa. 419; Orr v. Seiler, 1 Pennypacker, 445; Bernar v. Dunlap, 94 Pa. 329. There is no substantial ground for the complaint that the charge was inadequate. The principles governing the action were clearly and 'correctly stated in it. But the evidence submitted by the appellee showed that the prosecution was malicious and without probable cause, while the evidence submitted by the appellant showed the existence of probable cause, and the absence of malice on his part. This conflicting testimony was for the consideration of the jury, and what the learned judge said in reference to it amounted to an instruction that if the facts were as claimed by the appellee the verdict should be in her favor, and if they were as claimed by the appellant it should be against her. This instruction was quite as intelligible to the jury as if the learned judge had said that the testimony on the part of the appellant showed that there was probable cause for and no malice in the prosecution, or that the testimony on the part of the appellee showed that there was malice in it and a want of probable cause for it.

The instruction in relation to the advice of counsel was a lucid statement of the law upon the subject. It was for the jury to determine from the evidence whether the appellant had. in good faith laid before his professional adviser all the facts within his knowledge in respect to the alleged appropriation of his property by the appellee, and whether in prosecuting her for it he honestly followed advice founded upon information so communicated by him. It was not for the court upon the evidence in this case to sajr that he had done so. Advice so sought, re*551eeived, and acted upon, constitutes a defence to an action for malicious prosecution. It is available when the plaintiff has made a prima facie showing of a concurrence of malice and want of probable cause in the prosecution, but it is an affirmative defence, and it lies on the party who sets it up to establish it by his own or other testimony. Any evasion or concealment by the prosecutor in his statement of the case to his counsel, or any failure on his part to make a full disclosure of all the facts within his knowledge concerning it, will deprive him of the protection which advice founded upon an honest, fair and full presentation of the case affords. An incomplete and unfair statement warrants an inference that the advice was sought as “ a mere cover for the prosecution,” and an opinion based on such statement is an unsatisfactory reply to evidence of malice and want of probable cause. The legal advice which constitutes a defence to an action for malicious prosecution must rest on an honest and full presentation to counsel of all the facts within the knowledge of the prosecutor, or which he has reasonable ground for believing he is able to prove. In this case the appellant testified that the advice was obtained- on his statement that the appellee had his property and denied having it. His counsel testified that the appellant gave him to understand that she had fraudulently taken it, and that his advice to prosecute for larceny was based on the theory that she had stealthily possessed herself of the property and denied possession of it. The undisputed evidence was that the appellee bought the property of her daughter and openly took possession of it. In view of this evidence, and the further fact that the conduct of the appellant was at least consistent with a purpose on his part to use criminal process against the appellee as a means of compelling payment of the alleged balance due from her daughter on the so-called lease, it was certainly pertinent fof the jury to inquire whether the advice was obtained upon a truthful and fair statement of the facts as he understood them.

The specifications of error are overruled.

Judgment affirmed.