201 Mass. 547 | Mass. | 1909
This is an action for malicious prosecution. The plaintiff was discharged by a court of competent jurisdiction after having been arrested upon a charge of larceny preferred against him by the defendant.
1. The plaintiff was permitted to testify, subject to the defendant’s exception, that after his arrest and while waiting for
2. The defendant requested a ruling that “if the jury believe that Mr. Johnson told Mr. Sage (the defendant) what he testified he told him, and that Mr. Pineo told Mr. Sage what he testified he told Mr. Sage, and if Mr. Sage believed the statements to be true, then the defendant acted with reasonable and probable cause, and the plaintiff cannot recover.” It would have been unjust to grant this request in view of all the evidence. One important point as to which the testimony was conflicting was whether the plaintiff, at the time he sold certain chattels to the corporation of which the defendant was president, told the defendant that the articles, with the larceny of which the complaint charged him, had been borrowed from one Fisher in Somerville and were not included in the sale. If it was true that this statement was made by the plaintiff to the defendant, then it would not follow that belief by the defendant in the assertions made to him by Johnson and Pineo would constitute reasonable and probable cause, because they were not inconsistent with ownership of the articles by the plaintiff. Pineo’s testimony showed that the tools in question had been taken to a plumber named Fisher in Somerville. While the testimony of Johnson and Pineo standing alone might have a tendency to arouse suspicion against the plaintiff in the mind of
There was controversy between the parties as to several material facts. Hence the existence of probable cause was necessarily submitted to the jury. It is only when the facts are undisputed that whether or hot there was probable cause becomes a question of law to be determined by the court alone. There was no error in the portions of the charge to which exception was taken. The jury were told in substance that if one, suspecting that a crime has been committed, fairly represents to a magistrate all the circumstances with an honest conviction of their existence and truth and is satisfied as a cautious man that they furnish reasonable ground for such a conclusion, then he has done his duty and should be exonerated. These propositions were amplified and stated in various forms of plain language and the rule as to the burden of proof was given correctly. This was in conformity with numerous decisions of this court. Mitchell v. Wall, 111 Mass. 492. Laing v. Mitten, 185 Mass. 233. Ellis v. Simonds, 168 Mass. 316. The crime of simple larceny of certain chattels is one which may readily be understood by the ordinarily intelligent person and the facts, whether direct or circumstantial, which would justify a reasonable and prudent man in honestly believing one guilty of this offence, are not commonly such as to require instructions to the jury in greater detail than appear upon this record.
3. The plaintiff testified that one Johnson had no interest
Exceptions overruled.