No. 146 | 2d Cir. | Apr 12, 1905
Error is assigned of the ruling of the trial judge in refusing to direct a verdict for the defendant. The grounds upon which the defendant asked that a verdict be directed in his favor were that the evidence failed to show (1) that the defendant had instituted any prosecution against the plaintiff
The evidence tended to establish the following facts: The plaintiff, a dealer in coins, curios, antiques, etc., and having a place of business on the corner of Fourteenth street and Broadway, New York City, had purchased during the year 1899, in the course of his business and at various times, several badges issued by the Order of the Loyal Legion to its members, and on the 21st of December of that year had three of them unsold in his possession. Upon that day the defendant, who was a member of the order, and who had heard that some of the badges were for sale by the plaintiff, called at the plaintiff’s place of business to see the badges, accompanied by one Berkley, a detective officer, and was shown the badges by the plaintiff. Upon examining the badges the defendant saw one that he said belonged to him, and which he said he had recently discovered to be missing. In the conversation that ensued the defendant offered the plaintiff $3 for it. This offer the plaintiff refused, telling defendant, as was the fact, that he had paid $7 for it. The defendant and Berkley then went before Police Magistrate Mayo, told him the circumstances which had taken place, and asked him to issue a summons against the plaintiff. Berkley served the summons upon the plaintiff, and the plaintiff went with him before the magistrate. Magistrate Mayo, after hearing the plaintiff’s statement, adjourned the proceeding for a further hearing before Magistrate Pool. January 8th the defendant made a sworn complaint before Magistrate Pool, charging the plaintiff with withholding the badge, and praying that he be apprehended and bound to answer. The complaint, in substance, alleged that the badge had been stolen from the defendant’s office; that he subsequently, and on December 21st, saw it at the premises of the plaintiff, and then and there informed him that the badge had been stolen from him, and demanded the badge; and that the plaintiff refused to give the defendant the badge unless for the sum of $11, which sum the defendant refused to pay. Thereupon Magistrate Pool issued a warrant against the plaintiff, charging him with withholding the badge in violation of section 550 of the Penal Code. The plaintiff was arrested upon that warrant, and a preliminary examination ensued, in the course of which testimony was given by the defendant, by Berkley, and by the plaintiff, and which resulted in the plaintiff’s being held by the magistrate for trial before the court of special sessions. The defendant employed counsel, who appeared for him and assisted in conducting the examination. The court of special sessions transferred the case to the court of general sessions. Thereafter the defendant was summoned to appear as a witness before the grand jury in that court, and appeared and gave testimony; and the grand jury found an indictment charging the plaintiff with feloniously receiving, the badge well knowing the same to have been stolen. The plaintiff employed counsel, interposed
Before the second indictment was found the defendant, in an interview with the plaintiff’s counsel in the criminal case, and in response to an inquiry why he had not gone to trial with the other indictment, stated that he was “not willing to stand” for that indictment; that he did not believe and never'had believed that the plaintiff had received the badge knowing it to have been stolen; that the former indictment had been so drawn as to make him allege that, and he was not going to swear to what he did not believe ; that he had been advised that a charge could be made under the same section of the Code by which, if it could be shown that the plaintiff withheld the badge when he demanded it of him, and it could also be shown that the badge had been stolen from him, the plaintiff would be held criminally liable; and if that was so, he was going to push the case.
The defendant testified that he reluctantly yielded to the instructions of Magistrate Pool in making the complaint of January 8th; that he explained to the magistrate the circumstances relating to the theft of the badge and concerning his interview with the plaintiff at his place of business; that the magistrate read to him section 550 of the Penal Code, and advised him that a crime had been committed, and that he was in duty bound to make a complaint against the plaintiff; and that he accordingly made the complaint. He also testified that he read the part of the warrant reciting that the plaintiff had violated the provisions of section 550 of the Penal Code.
The evidence thus offered was sufficient to warrant the jury in finding that the defendant was the prosecutor in the criminal proceedings against the plaintiff for the offense defined by section 550 of the Penal Code, and that these proceedings resulted in the arrest of the plaintiff and his indictment, and were terminated by the dismissal of the indictment. Assuming that he was not responsible for so much of the prosecution as charged the plaintiff with receiving the badge originally knowing it to be stolen, and that the first indictment and some of the counts in the second did not represent any charge which the defendant had ever formulated, he carinot escape responsibility for the rest of the prosecution. He initiated it by applying for the summons to Magistrate Mayo; he par
“A person who buys or receives any stolen property * * * knowing the same to have been stolen, or who corruptly, for any money, property, reward, or promise or agreement for the same, conceals, withholds, or aids in-concealing or withholding, any property knowing the same to have been stolen, * * * is guilty of criminally receiving such property, and' is punishable,” etc.
An essential element of an offense under this section is that the person charged with its violation shall have received the property knowing the same to have been stolen. Consequently, unless the defendant has probable cause to believe that the plaintiff received-the badge with knowledge that it had been stolen, the prosecution from its inception was without probable cause. “Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man-in the belief that the person accused is guilty of the offence with which he is charged.” Sanders v. Palmer, 55 Ped. 217, 5 C.C.A. 77" court="2d Cir." date_filed="1893-04-18" href="https://app.midpage.ai/document/sanders-v-palmer-8846587?utm_source=webapp" opinion_id="8846587">5 C. C. A. 77, 14 U. S. App. 298. There was no evidence whatever to authorize the defendant to entertain a reasonable ground of suspicion that the plaintiff when he received the badge originally did so with' guilty knowledge. So far as appeared, the plaintiff had purchased: it in the usual course of business; it had been exposed by him freely for inspection and sale to his customers; and he had not made any incriminating statements about it. The evidence authorized the conclusion that the defendant instituted the criminal proceedings-solely upon the circumstances that the badge had been found in-the plaintiff’s possession, and the plaintiff, after being informed in substance that it belonged to defendant and had been stolen, had refused to surrender it without being paid the price which he asked' for it.
To rebut the inference of malice arising from the want of probable cause, it is competent for a defendant in an action for malicious prosecution to show that he acted bona fide, upon legal advice, in instituting the criminal proceeding, and this, being proved, defeats-the action. In Stewart v. Sonneborn, 98 U.S. 187" court="SCOTUS" date_filed="1879-01-18" href="https://app.midpage.ai/document/stewart-v-sonneborn-89862?utm_source=webapp" opinion_id="89862">98 U. S. 187, 25 L. Ed. 116, such proof was treated as.establishing probable cause; but it would seem more strictly correct to view it as disproving malice. In either view, the requisite proof was not made upon the trial, be
If the evidence had gone no further than to show that the defendant’s only participation in the criminal proceeding had consisted in his going before the magistrate and laying before him fairly and truthfully the facts which .had come to his knowledge, and that the magistrate had thereupon, in the exercise of his own judgment, issued the warrant, it would have been the diity of the trial judge to direct a verdict for the defendant. Cooper v. Booth, 3 Esp. 144; Wyatt v. White, 5 H. & N. 371; McNeely v. Driscoll, 2 Blackf. 259" court="Ind." date_filed="1829-05-23" href="https://app.midpage.ai/document/mneely-v-driskill-7029651?utm_source=webapp" opinion_id="7029651">2 Blackf. 259; Bennett v. Black, 1 Stew. (Ala.) 495. In Dennis v. Ryan, 65 N.Y. 385" court="NY" date_filed="1875-05-05" href="https://app.midpage.ai/document/dennis-v--ryan-3587776?utm_source=webapp" opinion_id="3587776">65 N. Y. 385, 22 Am. Rep. 635, an action for malicious prosecution, the court said that if the defendant’s statement to the district attorney and grand jury had been true, and an indictment had been found and prosecuted upon its truthful statement, the action could not have been maintained. In such case, the defendant would not have been guilty of any wrong. “The oppression of the plaintiff would have been attributable alone to the erroneous legal conclusions of the district attorney and grand jury.” In Thaule v. Krekeler, 81 N. Y. 432, an action for malicious prosecution of the plaintiff for larceny, the court said:
“It thus appears that, while the charge of larceny is made in technical terms, the facts and circumstances on which it stands are stated, and if they are true this action cannot be maintained. The affiant is responsible for those statements, but not for the legal conclusion drawn therefrom, either by the police magistrate or the district attorney or grand jury.”
The evidence upon the trial in respect to what took place when the sworn complaint was made and the warrant was issued by Magistrate Pool did not consist merely of the testimony of the defendant. If it had, the jury would have been at liberty to disregard it as the uncorroborated testimony of a party in interest, and the trial judge could not properly have taken the case from their consideration. But the sworn complaint made by the defendant shows that the statement for which he was responsible, and upon which the magistrate issued the warrant, was a truthful statement of the facts except in one immaterial particular. This statement did not assert that the plaintiff had received the badge with guilty knowl
It ha's not been argued upon this writ of error that the trial judge erred in ruling that the prosecution had terminated in favor of the plaintiff. The court of general sessions dismissed the indictment in pursuance of section 671 of the Code of Criminal Procedure, which provides that “the court may at any time upon its own motion, and in furtherance of justice, order an action after indictment to be dismissed.” In dismissing the judge observed:
“A careful examination of tlie entire record and all the facts and circumstances of the case convinces me that upon a trial no jury could convict, and, further, that, even if a conviction were had, no court ought to or would punish the accused.”
Obviously the dismissal was upon the merits.
The assignment of error based upon the admission of the first indictment in evidence by the trial judge is without merit. When it was offered and received the evidence which had been previously introduced authorized the presumption that it had been procured at the instance of the defendant, and the testimony indicating that he may not have been responsible for the charge alleged in it had not been introduced. Apparently it was one of the concomitants of the prosecution engendered by the defendant by which the plaintiff had been subjected to contumely and expense. Assuming that upon the evidence subsequently introduced the defendant could properly have insisted that he was not responsible for this indictment, he could have raised the point by asking that it be eliminated from the case, or an instruction be given to the jury that it was not to be considered by them in awarding damages. He did not do this, and, as the indictment was clearly admissible in evidence at the stage of the trial at which it was received, he cannot now well urge the point thát he has been prejudiced by its reception.
The judgment is affirmed.