115 Ill. App. 46 | Ill. App. Ct. | 1904
delivered the opinion of the court.
The action is case for malicious prosecution. The averments of the declaration are amply sufficient as a basis for proof of want of probable cause and malice; but it is contended by appellees’ counsel that the conviction of appellant alleged in the declaration, and which was reversed by the Appellate Court for the Second District in Gilmore v. The People, 87 Ill. App. 128, is conclusive evidence of probable cause for the prosecution of appellant. In Thomas v. Muehl mann, 92 Ill. App. 571, one of the questions presented ivas, whether a conviction before a justice of the peace, in a case in which the justice had jurisdiction to render final judgment. although reversed on appeal, was conclusive evidence of probable cause for the prosecution. We said, Hr. Justice Windes delivering the opinion: “ The weight of authority establishes the following in substance, to wit: That when a justice of the peace has jurisdiction to render final judgment in the examination of a criminal charge, and is not simply a committing magistrate, when the hearing is fair, without fraud, and the testimony for the prosecution free from perjury, and results in the conviction of the defendant, such conviction is conclusive on the question of probable cause for the prosecution, though on appeal the defendant may be acquitted.” Citing numerous cases.
The question has been very elaborately discussed by counsel in the present case, and a large number of cases have been cited, many of them irreconcilably in conflict. While it seems reasonable to hold that conviction, after a full and fair hearing by a court having jurisdiction of the person and subject-matter, untainted by fraud, conspiracy to procure conviction by false testimony, or subornation, or by any undue or unlawful means, should be conclusive evidence of probable cause, it seems unreasonable to hold that a conviction procured by a conspiracy to procure conviction by perjury, and so, in fact, procuring it, as is alleged in the declaration before us, is conclusive evidence of probable cause. Accordingly, we find courts holding that conviction procured by such unlawful means as above mentioned, is not conclusive evidence of probable cause.
In Cloon v. Gerry, 13 Gray, 201, Shaw, C. J., delivering the opinion of the court, said : “ And when the plaintiff had been convicted by a tribunal constituted by law, with authority to render a judgment, which, if not appealed from, would have been conclusive of his guilt, and such judgment is not impeached on the ground of fraud, conspiracy, or subornation,in its procurement, although afterwards reversed on another trial, it furnishes sufficient proof that the prosecution was not groundless, and to defeat an action for malicious prosecution.” .We think the opinion of Chief Justice Shaw, that the impeachment of the judgment “ on the ground of fraud, conspiracy or subornation in its procurement” would destroy its effect as evidence of probable cause, entitled to great weight, notwithstanding the Maine court held the contrary in Garing v. Fraser, 76 Me. 37. See the following cases in support of the proposition that when the conviction is procured by undue means, as by fraud, conspiracy or false testimony, or subornation, it is not conclusive of probable cause: Womack v. Circle, 32 Grattan, 324, 338-9; Blucher v. Zonker, 19 Ind. App. Ct. R. 615; Adams v. Bicknell, 126 Ind. 210, 214, citing Bitting v. Ten Eyck, 82 Ind. 421; Phillips v. Kalamazoo, 53 Mich. 33; Ross v. Hixon, 46 Kan. 550, 554, and cases cited; Lawrence v. Cleary, 88 Wis. 473; Murphy v. Ernst, 46 Heb. 1; Hartshorn v. Smith, 104 Ga. 235, 238; Burt v. Place, 4 Wend. 591; Spring v. Besore, 12 B. Monroe, 551, 555-6; Kaye v. Kean, 18 B. Monroe, 840, 846; Welch v. R. R. Co., 14 R. I. 609, 610; Boogher v. Hough, 99 Mo. 183; Holliday v. Holliday, 123 Cal. 26, 32; Page v. Cushing, 38 Me. 523; and see 1 Millard on Torts, 4th ed., pp. 479-80, sec. 29.
In Boogher v. Hough, supra, the precise question whether a conviction procured by fraudulent means was conclusive evidence of probable cause, was presented and decided^ The plaintiff averred, in substance, that by the fraudulent act of the defendants he was deprived of the testimony of his principal witness, and the court held : “ The pleading is to be taken in its entirety. The fraudulent and oppressive acts charged to have been committed by defendants to procure the judgment, overcome the force and effect which the judgment would otherwise have had,” citing Burt v. Place, 4 Wend. 591. In Page v. Cushing, 38 Me. 523, the complaint or declaration is not set out, but it sufficiently appears from an instruction given by the trial court to the jury, that a conspiracy of the defendants to effect an unlawful purpose was charged, and that there were overt acts in pursuance of the conspiracy. The court say: “ For there can. be no such thing as probable cause for a prosecution to accomplish a purpose known .to the prosecutor to be unlawful.”
In Crescent Live Stock Co. v. Butchers’ Union, 120 U. S. 141, the court recognizes as an exception to the general rule, that a conviction by a court of competent jurisdiction is conclusive evidence of probable cause, the procurement by the defendant of the conviction by .fraud, oppression or other undue means, and after citing cases in support of the exception, say: “ This seems to reconcile the apparent contradiction in the authorities, and states the rule, which we think to be well grounded in reason, fair and just to both parties, and consistent with the principles on which the action for malicious prosecution is founded.”
We are not aware of any decision of the Supreme Court of this state on the precise question; but we think it the better reason that if a Conviction is obtained by fraud, oppression, or any undue means, this counteracts the' effect which the conviction would ordinarily have as evidence of probable cause. A defendant, in such case, should not be allowed to escape liability by reason of his own fraudulent and unlawful conduct.
Counsel for appellant apparently relies on the charge of conspiracy as a substantive charge, and discourses of the ancient writ of conspiracy, which is unknown to our law. As heretofore said, this is an action for malicious prosecution, and the gist of the action is the alleged tort, and not the conspiracy. Garing v. Fraser, 76 Me. 37; Wellington v. Small, 3 Cushing, 145, 150; Parker v. Huntington, 2 Gray 124; Martin v. Leslie, 93 Ill. App. 44, 56, and cases cited. In Garing v. Fraser, supra, the court sa.y: “ To charge all the defendants, joint action must be proved, and the allegation of a conspiracy may be a proper mode of alleging it; but for any other purpose it is wholly immaterial, and it does not change the nature of the action or add anything to it.” We think this an accurate statement of the law. In Parker v. Huntington, supra, the court say; “ The charge of conspiracy is mere surplusage, intended and used as matter 'of aggravation, and, therefore, not necessary to be alleged or proved. The gist of the action is not the conspiracy, but the damage done to the plaintiff by the acts of the defendants, and this is equally great, whether it be the result of a conspiracy or of the act of a single person.” It is obvious, in the present case, that as the acts charged are alleged to have been the acts of all the appellees, their joint liability could be proved without any averment of conspiracy.
It is averred in the declaration “ that thereupon all of said indictments against said plaintiff and said criminal complaints and charges were each and every of them dismissed, and the said indictment and prosecution are wholly ended and determined.” Counsel for appellees object that these averments are insufficient. We think them amply sufficient.
The judgment will be reversed and the cause remanded.
Reversed and remanded.