49 N.Y.S. 203 | N.Y. App. Div. | 1898
This is an action for malicious prosecution, in which the jury rendered a verdict awarding the plaintiff damages in the sum of $150 against the defendant Johnson and $600 against the defendant Lin
Four questions, and only four, appear to be presented by the •appellants for consideration and determination upon this appeal.
The first question is raised by the denial of the defendants’ motion to dismiss the complaint, and relates to the sufficiency of the proof introduced by the plaintiff to establish want of probable cause in the ■criminal proceedings which the defendants instituted against him. The charge was originally grand larceny, but this was withdrawn, .at the instance of the assistant- district attorney who conducted the ■case for the People, and a charge of petit larceny was substituted therefor, upon which the. present plaintiff was tried and acquitted. The information which was sworn to by the defendant Johnson alleged that, on or about the 20th day of May, 1895, “ one Frederick B. George did steal, take and carry away from the possession of this deponent, from the premises known as 210 Cleveland street in the city of Brooklyn, a wooden fence valued at about twenty dollars, the property of this deponent.” It appears that the plaintiff and the defendant Johnson occupied adjoining premises on Cleveland street, the plaintiff being a tenant of the defendant Linton. Between the lots was a wooden fence, which sagged over toward the premises occupied by the plaintiff, and a.portion of which had blown down. In the absence of the plaintiff from his home, some person or persons in the household of the defendant J ohnson took down the fence and piled the boards in the plaintiff’s yard. Finding them there and apparently being somewhat incensed at this occupation of his yard without his consent, the plaintiff removed the boards to the cellarway of his house. This he. did without- any attempt at concealment. 11 While I was doing it,” he testifies,. “I saw my wife and my sister-in-law, and also some of the Johnson folks next door looking at me.” He did nothing with the boards after that, and left them where he had thus placed them when lie' vacated the premises about a month later. No demand was ever made upon him by any one for their return, nor does any •complaint appear to have been made in respect to his conduct in
The responsibility of the defendant Johnson for this charge was plain enough, inasmuch as he swore to the information. The responsibility of the defendant Linton was based upon evidence to the effect that he had instigated the prosecution by advising the defendant Johnson' to make the complaint:
The evidence as to the circumstances under which the plaintiff took the boards was somewhat conflicting, ^nd for this reason the learned trial judge left the question of want of probable cause to the jury. The boards had been placed upon premises of which the plaintiff was the lawful occupant without his consent, and he was plainly under no legal or moral obligation to allow them to remain where he found them. There was nothing unlawful in removing them to another part of the premises for convenience or safekeeping until they should be demanded by their owner; and larceny could not be predicated of his act in placing them in the cellarway, unless it could be held that he thus secreted, withheld or appropriated them to his own use with the intent to deprive the true • owner of his property therein. (Penal Code, § 528.) But the circumstances of the removal, which was made publicly and without the slightest effort at concealment, and was, indeed, witnessed by the father of the defendant Johnson, negatived the inference of any criminal intent and fully justified the jury in finding that there was nothing in the plaintiff’s conduct which constituted probable cause for accusing him of theft.
The appellants complain, however, not only of the action of the trial court in leaving the question of the want of probable cause to the jury, but of the language used in the charge on that subject. After telling the jury that it was not necessary, in order to justify the defendants in making the complaint, that the plaintiff should in fact have stolen the boards, the learned judge said : “ Probable cause is merely such a state of facts as would induce in the mind of an ordinary prudent person a strong suspicion that a crime has been committed ; so that if the facts, as they were known b.y Mr. Johnson, the defendant, were such as would have created, or might have created, in a person of ordinary prudence a strong suspicion that the plaintiff intended to steal these boards, that is all that is neces
The third point of the appellants relates to an alleged error of the trial judge in admitting testimony to shouv that no demand had ever been made of the plaintiff for the boards.. This evidence, we think, was clearly admissible as bearing upon the question of want of probable cause, and, perhaps, also on the question of malice. If a demand had been made ' by the owner and not complied with, it might well be said that the plaintiff was endeavoring to appropriate property which did not belong to him. On the other hand, it may be suggested that the defendant Johnson, under all the circumstances, and knowing perfectly well where the boards were, was not justified, without any effort to obtain them, in believing that they had been taken feloniously.
Finally, it is contended that error was committed in allowing the plaintiff to testify that he had no other object in view when he moved the boards except to clear out his yard. In support of the objection and exception taken to the admission of this evidence, reference is made to the case of King v. Colvin (11 R. I. 582), which was an action for malicious prosecution, in which it was held that facts tending to show the plaintiff’s innocence, but not known, to the defendant at the time of the ..accusation, were not relevant to the issue, since the question of probable cause did hot depend upon the actual guilt or innocence of the accused, but upon the prosecutor’s belief in it at the time of the prosecution upon reasonable grounds. That decision, however, has no application to the case at bar, for
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.