Ewing v. Sanford

21 Ala. 157 | Ala. | 1852

PHELAN, J.

— It nowhere appears that the charge of the judge, in which he told the jury, that if they found the defendant guilty as charged, “ they must make him pay for the wrong he had done,” was excepted to. There is nothing in these words but a sound principle, at all events. The counsel commented on the manner of the judge saying it was angry and menacing. There is nothing in the bill of exceptions or in the words themselves, that gives any indication that the manner of the judge was wanting in moderation or propriety, if we even had power to take notice of that.

The court was requested to charge, “ that if defendant believed at the time he made the affidavit that the conduct of Sanford, forming such ground of accusation, amounted to the offence charged,” they, the jury, must find for the defendant.

In actions for malicious prosecution, two things are essential to be established by the plaintiff: 1. The absence of all probable cause for such a prosecution on the part of the de-fendan ; 2. That the prosecution was malicious.

The defendant may successfully defend, by showing, either that there was probable cause for the prosecution, or, admitting that there was not probable cause, still, that he had not been actuated by bad motives, or what the law terms malice.

Wherever, in actions of this class, the defendant, although unable to show a state of facts sufficient to establish the truth of the accusation which was preferred against the plaintiff, is nevertheless able to bring forward such a state of facts and circumstances, as were calculated to induce, in the mind of a reasonable and prudent man, a well-grounded belie t of the guilt of the party, this will be sufficient for his protection. To hold men to more than this, would so greatly discourage prosecutions, that the public good would suffer for the want of seasonable cooperation upon the part of private individuals, in aid of the public authorities, in suppressing crime.

Malice is either express or implied; express, when evinced by threats, old grudges, &c.; implied, when we can find no good or justifiable motive for an act calculated to do harm to another. When we can find no good or justifiable motive for an act calculated to do injury to another, we imply necessarily a bad motive, or malice.

No matter how far a man may be impelled by malice in prosecuting another on a criminal charge, provided he can show probable cause, the law, from motives of public policy, will hold him harmless, when sued for a malicious prosecution.

On the other hand, if ho cannot show probable cause, the law will imply malice, from the absence of probable cause, unless he can show, by way of repelling this implication, that such facts and circumstances existed, that, although not amounting to what is called probable cause, they were calculated to produce at the time, in the mind of a prudent and reasonable man, a well-grounded belief or suspicion of the party’s guilt, and that he was not, therefore, actuated by malice, in commencing the prosecution.

In Chandler v. McPherson, 11 Ala. 916, the court say, that “if the defendant acted under an honest belief that the plaintiff was guilty of the offence with which he was charged, no recovery can be had against him.” In the subsequent case of Long v. Rodgers, 19 Ala. 321, this honest belief is explained, and declared to be, not “ a belief founded in the caprice, prejudice, or idle dreams of tbe prosecutor, iu tbe absence of all facts and circumstances wbicb would generate sucb suspicion of guilt in tbe mind of a reasonably prudent man,” but a belief founded on facts and circumstances wbicb, although not amounting to probable cause, would yet induce, in tbe mind of a reasonable and prudent man, so serious a suspicion of tbe ¡carty’s guilt, as to repel effectually tbe idea that be acted from malice in prosecuting hnn. See also, Ewing v. Sanford, 19 Ala. 605. Tbe charge requested of tbe court falls short of this, by making tbe belief of tbe party alone, without further qualification, sufficient to exonerate him, and for that reason tbe court acted properly in refusing it. ' Tbe charge that was given by tbe court as qualified, was going fully as far as the law would justify in favor of tbe plaintiff.

Tbe refusal to give a charge correct in itself, in tbe precise words requested by counsel, is not error, if tbe charge given by tbe court on tbe point in question is a full and fair exposition of tbe law. A charge, correct in itself, may mislead a jury sometimes for want of fullness, simplicity or clearness of expression. It is true, a court may, and commonly ought, to give a charge wbicb is correct in itself, though liable to any of these objections, in tbe very words that are proposed, and then add explanations afterwards. But this court has bolden in a late case, and after careful consideration, that it was not error to refuse to adopt tbe very words of tbe counsel, provided tbe charge that was given was a full and fair exposition of tbe law; and that decision will be followed. Long v. Rodgers, 19 Ala. 321.

Thus, tbe charge that was asked, in wbicb tbe court was requested to instruct tbe jury, that an “honest belief” of Sanford’s guilt on the part of defendant, even in tbe absence of proof of probable cause, would be sufficient to excuse him, may be, strictly speaking, correct, if we interpret tbe word “honest” according to tbe signification put upon it in 19 Ala. 321. But tbe court was not bound to give it as tbe counsel asked it. It did not really contain within itself an instruction calculated to enlighten the jury fully. Had it been given as tbe defendant asked it, tbe court would have been bound, in order to prevent a probable misapprehension, to have gone on. and explained wbat was meant by an bonest belief.

After having just before given an elaborate and correct charge on the subject of malice and probable cause, fully explaining and setting forth the principles of law applicable to the case, which the defendant suffered to pass without exception, the court was requested by the counsel for the defendant, to charge the jury, that if the magistrate, on the trial of the warrant, bound over the defendant to answer the charge, “ that this was prima facie evidence of probable cause.” This charge the court refused to give.

In view of the proof of the cause, and the charge already given, the court properly refused to enunciate, without further explanation, the principle, however correct abstractly considered, that was contained in the charge requested by the defendant. Without explanation, which the court was not bound to give, the simple enunciation of that principle would give it a seeming importance, more calculated to mislead, than to enlighten the jury. All the facts connected with the arrest of the plaintiff, his trial and commitment by the magistrate, and his subsequent discharge, were before the jury; and to charge as to the effect of the commitment by the magistrate merely, without reference to the other proof in the cause, would not have been proper.

The admission of the record of the suit between these parties, in which Sanford recovered of Ewing a judgment for the same negro woman which Ewing had prosecuted him for stealing, was proper, under any aspect of the case. To repel the truth of the charge preferred by Ewing, was one of the duties that devolved on Sanford under the allegations of his declaration, and there was no proof more proper for such a purpose, than a recovery of the very slave he was charged with stealing, in a suit against the person who preferred the charge, and to whom she had been delivered by the magistrate.

The last assignment relates to the alteration made in the form of the verdict by direction of the court. The verdict as rendered, was in substance the same, both before and after the alteration directed by the court. It was a correction as to matter of form only, and this the court may properly direct at any time. In an action on tbe case, a verdict saying, “We, tbe jury, find for tbe plaintiff, and assess bis damages at $2500,” is equivalent to saying, “We, tbe jury, find tbe defendant guilty, and assess tbe damages at $2500.” “We find for tbe plaintiff,” is, in other words, “We find the issue for tbe plaintiff.

There is no error in tbe record, and tbe judgment below is affirmed.