84 Me. 261 | Me. | 1892
It appears from the testimony that in April, 1889, the plaintiff received an injury upon his eyes through a ■premature, explosion of rock in a granite quarry; that he first ■came under the professional treatment of the defendant, a practicing physician and surgeon; that he afterwards visited an eye :and ear infirmary in Portland, receiving treatment there; and that the final result to him was total blindness.
On December 3, 1889, he sent the defendant this communication : — "Dr. Frink, Dear Sir : — I will drop you a few lines to '.let you know through your co-treatment of my case I have lost
On the seventh day of the same month, the defendant procured a warrant against the plaintiff, signed by trial justice P. H. Mills, in pursuance of a complaint, signed and sworn to by the defendant, the charge in which is as follows:—
"Edward A. Frink, of Deer Isle, in the county of Hancock and State of Maine, in behalf of said State, on oath, complains that Timothy Finn, of East Surry, in the county of Hancock, State of Maine, did on the third day of December, a. d., 1889, write over his own signature a certain libelous, slanderous, threatening letter directed to Dr. Frink of Deer Isle, in said county, for the purpose of extorting money from the said complainant, which letter came duly into the hands of the said complainant through the United States mail, as he affirms for the purpose of blackmail, against the peace of the State, and contrary to the form of the statute in such case made and provided.”
The case was tried before trial justice S. G. Haskell, who quashed the complaint as defective. Thereupon a new complaint was sworn to before the last named justice, made in stricter form, setting out the letter in full, and alleging an attempt by the letter to extort money as blackmail. On a w arrant issued on this complaint the plaintiff wras arrested, carried before a third trial justice, tried on a plea of not guilty and discharged.
Soon afterwards the plaintiff brought the present action for malicious prosecution, and in the trial of the action several questions arose, which are presented to us by the defendant’s bill of exceptions.
As affecting the question of probable cause the defendant offered to show, but was not permitted to do so, that his treat
The defendant contended at the trial that there could be no recovery against him on the count in the declaration which alleges a malicious prosecution by means of the first complaint against the plaintiff, because that complaint charges no legal offense. The same objection was urged at the argument in this court against all the counts in the writ. The idea of the defense is that an insufficient complaint is no complaint, an illegal prosecution no prosecution. The first complaint affirms that a libelous letter was sent To the complainant for the purpose of extorting money by blackmail. It undertook to charge a felony. The plaintiff was arrested and tried in the same manner he would have been if a strictly legal proceeding had been instituted. In. a technical sense no crime was charged, but one was sufficiently stated to entitle the proceedings to be called a prosecution. It was deemed sufficient by the complainant and the magistrate, and would have seemed to be so perhaps to most men. It was hurtful to the plaintiff in the extreme. It was none the less a prosecution because defended on the law and not on the fact. The defendant is estopped to deny that it was a legal prosecution, excepting so far as its illegality may affect the question of damages. The reason of the thing is so strong we do not feel it necessary to invoke the aid of any authorities on the question.
The counsel for defendant requested the judge presiding to instruct the jury that, "if the defendant, in applying to the trial justices for the warrants against the plaintiff, made to the justices true statements of the facts of the case, this action cannot be maintained.” The only fact in the case to be submitted
But the defendant did more than merely to report the letter to the magistrate. He signed and made oath to the complaint. That was his own responsibility. The magistrate could not require him to do so, nor do the act in his behalf. The most the m agistrate could do for him would be to advise that a complaint be made. 'The requested instruction, if taken literally, was properly refused, because the facts confessedly did not support it.
If, however, it was sought, as we have no doubt it was, to obtain a jading from the court, that counsel and advice, from a trial justice in favor of the institution of a criminal prosecution, given upon a full, fair and truthful statement of the facts by the complainant, would exonerate a complainant from responsibility to the same extent and with the same effect as would follow had the advice been given by a counselor at law under the same circumstances, then, too, the ruling was right. Magistrates are not counselors. It is not a privileged duty of magistrates to advise. We know that trial justices are not learned in the law, nor safe advisers on important legal questions. Of this there can be no better evidence than these very complaints and warrants which are the foundation of this case; and, still, the persons who acted as magistrates in these proceedings are known to the court as intelligent and influential men in the community wdiere they live.
Two things are to bo investigated preliminarily to the commencement of a criminal prosecution, the facts and the law. Probable cause depends upon both. A complainant may know the facts, but not the law. He may obtain advice upon the
Exceptions overruled.