| Md. | Mar 12, 1875
Lead Opinion
delivered the opinion of the Court.
At the trial of this case in the Court below, the plaintiff took two exceptions, the first to the exclusion of evidence from the jury and the second to the refusal of the Court to grant his second, third and fourth prayers as well as to the instructions given by the Court in lieu of them, and of the second prayer of the defendant.
1st. The fact that, pursuant to the regular custom of the detective police department, the appellant’s name was entered upon the detective police annals of the city and open to the inspection and use of the police force,' as tending to show the publicity of the charge made against him and the consequent injury to him, was clearly not admissible evidence against the appellee, unless there was some law requiring such a record to be kept, or unless the appellant was prepared to show by proof that the appellee knew that tlie name of the appellant would be so entered as the consequence of the charge of theft being preferred against him. The acts of the detective force were certainly not admissible for the purpose, of inflaming the damages against the appellee without further proving that there was some law, of which the appellee would be bound to take notice, requiring an entry on their books of the name of any party against whom a criminal charge might be preferred, or that it was their custom to make such entry and that the appellee had a knowledge of that fact. There was no error in the ruling in this exception.
The second prayer of the appellant was properly rejected because it defined malice to be, in its legal sense, any wrongful act done intentionally, without legal justification or excuse. Malice is not an act, but the wrongful motive that prompts the act. Addison on Torts, 592. What constitutes a legal justification or excuse is matter of law to be determined by the Court, and no prayer should be
The appellant’s third prayer groups together various facts and asks the Court to instruct the jury that they may consider said facts, if found by them, in determining whether or not the defendant was actuated by malice.
Several of the facts so enumerated, even if found by the jury, would not be evidence of malice, as for instance the voluntary attendance of the defendant upon the execution of the search warrant and his entrance into the plaintiff’s house while the search was being made. He not only had a perfect right to accompany the officer who made the search, but it was his duty to accompany him so as to identify his property if found. This prayer was also properly rejected.
It is conceded by the appellant’s counsel that the instruction asked by his fourth prayer is fully covered by the Court’s instruction.
We find no error in the instructions granted by the Court in lieu of the plaintiff’s second, third and fourth prayers and of the defendant’s second, taken in connection with the plaintiff’s first prayer which was granted.
The principles of law, announced in them, have been so often adopted and sanctioned by this Court, that they can no longer be questioned. Indeed the counsel of the appellant concedes the correctness of the instructions as granted, but complains that the Court did not go further and define malice, which definition he thinks he had a right to demand.
The Court having rejected his prayer defining malice, because it was incorrect, it was not bound, ex mero motu, to give any definition of it.
Finding no error in the rulings of the Court below, the judgment appealed from will be affirmed.
Judgment affirmed.
Dissenting Opinion
delivered the following dissenting opinion:
This was an action for malicious prosecution.
The testimony proposed by the appellant in the first exception, that his name was entered in the annals of the detective police department, according to its uniform custom, in consequence of the charge alleged against him by the appellee, was irrelevant and immaterial, not being within the issues and was properly rejected by the Circuit Court.
The appellant’s second exception was to the refusal of his second, third and fourth prayers, and to the instructions of the Court.
The second prayer of the appellant sought to obtain from the Court, for the instruction of the jury, the meaning of the term malice, applicable to the case before them. Malice expressed or implied on the part of the appellee, was a necessary fact to be established or inferred, to sustain the suit of the appellant.
The gravamen of the complaint against the appellee, was that appellant had been subjected to a criminal prosecution, through his instigation, without probable cause and from malicious motives, on his part. The onus was upon the appellant to prove the requisite malice.
The existence of malice, or not, was a question for the jury, and the appellant was entitled to have its legal character, as applicable to the case, explained by the Court to them, when called on by a suitable prayer, so that they could comprehend the nature of the inquiry before them, and find their verdict accordingly, from the evidence. Whiteford vs. Burckmyer, 1 Gill, 143; State vs. Hammond, 6 G. & J., 169; Plater vs. Scott, ib., 116; Parkhurst vs. N. C. R., 19 Md., 479. Without such instruction, the jury would naturally attach to the term malice its ordinary meaning, and find their verdict accordingly.
It was material, therefore, that the jury should be instructed as to the nature of the defendant’s malice, as involved in the issues before them.
The want of apt phraseology in the prayer, if the prayer was substantially correct, was not a sufficient defect to vitiate it.
That the malice requisite to the support of this action did not, necessarily, involve the existence of personal ill-will, spite, or hatred on the part of appellee toward appellant was true, and expressive of the motives of appellee. Any wrongful motive, or other than that of simply instituting a prosecution for the purpose of bringing a person to justice, is a malicious motive on the part of the person who acts under its influence. Addison on Torts, 592. But the terms used in the prayer, that “in its legal sense it is any wrongful .act done intentionally, without legal justification or excuse,” was characteristic of conduct in connection with motive.
That malice might he inferred from such an act, was also true, hut the language was not the best to be employed. Such want of precision could not, however, destroy the substance of the prayer. We think the prayer sufficiently indicated the náture of the malice applicable to the case, and that it ought to have been granted.
That malice sufficient to support this suit could he inferred from a wrongful act done by appellee, intentionally, without legal justification or excuse, is fully established. See Turner vs. Walker, 3 G. & J., 377; Cecil vs. Clark, 17 Md., 508; Boyd vs. Cross, 35 Md., 197; Strauss vs. Young, 36 Md., 246; Cooper vs. Utterback, 37 Md., 283; Stansbury vs. Fogle, 37 Md., 369.
The third prayer of the appellant undertook to enumerate certain of the facts in proof, as showing malice, some of which had no such pertinency.
There was no error in the rejection of the prayer.
The reference to certain facts in the case of Turner vs. Walker, 3 G. & J., 387, in the opinion of the Court, is but a designation of the kind and extent of proof admissible in a case like this.
The appellant had the benefit of his fourth prayer in the instruction given by the Court, and has no cause of complaint.
The Court having rejected the second, third and fourth prayers of the appellant, and substituted its own instructions in lieu thereof, and of appellee’s second prayer, we think it ought to have instructed the jury as we have stated, as to the legal significance of the term malice ; and the jury should not have been left to determine for themselves, according to their own conceptions, what was to be understood upon such a material element of the case.
In other respects, the appellant could have no cause of complaint with the instructions of the Court.
Whilst the Court may reject prayers and substitute their own instructions upon the proposition presented by the parties, yet, under such circumstances, the law ought to be declared fully and accurately, and in terms certain, explicit and intelligible to the jury, upon the points raised by the counsel. Snively & Keys vs. Fahnestock, 18 Md., 391; Atwell vs. Miller, 4 Md., 19; B. & O. R. vs. Resley, 14 Md., 443.