Bernstein v. Walsh

32 Pa. Super. 392 | Pa. Super. Ct. | 1907

Opinion by

Orlady, J.,

The plaintiff: recovered a verdict of $500 in this action of trespass for malicious prosecution, and the assignments of error upon which the -appellant relies are directed at the charge of the court, which it is earnestly contended was unfair and inadequate, because it impressed a one-sided view of the case upon the jury, one unfavorable to the defendant, as well as cast having discredit on certain circumstances which tended in his favor.

Viewing the appellant’s conduct in its most favorable light, he acted upon a state of facts, which affected with equal pertinence at least three persons and rose no higher than a mere suspicion; with this uncertain foundation he persisted in his original error by instituting and conducting a course of events without any possible warrant in law. The verdict was fully warranted by the appellant’s own testimony. He did not resort to legal procedure to prosecute a suspected person, but made the law of his case to suit himself. He went outside the jurisdiction of our courts, and at the point of a revolver apprehended the plaintiff, and had him confined in a prison as a thief for about two weeks, until he secured formal requisition papers to have him transferred to Philadelphia for trial. When the cause was formally tried in the quarter sessions under an indictment charging the present plaintiff with larceny, the evidence was so meager and unreliable that the trial judge directed the jury to return a verdict of not guilty. The appellant’s testimony in this record is so contradictory, and the facts he alleged in extenuation of his conduct, so unreliable, that the trial judge was clearly within the bounds of reasonable speech in saying to the jury: “ It is difficult to treat this case without reaching the conclusion that this defendant, Mr. Wash, is under certain circumstances a dangerous citizen. . . . The plaintiff was brought to Philadelphia under circumstances of peculiar degradation. . . . He could not have been subjected to greater humiliation for any crime that he could have committed.”

On the trial below the defendant’s side of the case was presented by able counsel; and his point for instruction, which fairly exhibited his view of the law applicable to the facts, viz: “If the jury find that Walsh had reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing that Bernstein was guilty of the crime charged, they must find for the defendant,” was affirmed by the court without any qualification. The plaintiff’s contention was corroborated by other witnesses as to the main features of the case, and however disastrous it may be for the defendant there was no other side for consideration by the jury. The plaintiff’s disregard of> duty in leaving his employer without giving him a reasonable notice of his intention so to do, and which made his conduct at least suspicious, was doubtless the main cause for the light verdict he recovered.

As held in Mihalyik v. Klein, 22 Pa. Superior Ct. 193, the arrest and subsequent imprisonment of the plaintiff were an unwarranted abuse of legal process, and a trespass pure and simple for which this defendant is liable; and the court was fully justified in its definition of the measure of damages. It is well settled that it is not error for a judge in his charge to the jury, to express his opinion upon the facts, if done fairly; in some eases it might be bis duty to do so, provided he does not give binding instructions or interfere with the province of the jury: Commonwealth v. Johnson, 133 Pa. 293; Commonwealth v. Warner, 13 Pa. Superior Ct. 461.

The assignments of error are overruled and the judgment is affirmed.