| La. | Mar 15, 1854
This is an action of damages for false imprisonment. The defendant pleaded the general denial, and the jury have fround a verdict against him for twelve hundred and fifty dollars. -A motion for a new trial was made, which having been overruled, the defendant has appealed from the judgment rendered in accordance with the verdict.
The first question is whether the defendant was the prosecutor and made the affidavit on which the plaintiff was arrested and imprisoned. A cópy of the commitment was received in evidence which recites that the plaintiff, S. 8. Sail, had been arrested on the information of Joseph A. 8,1 Achlen, made on oath before the magistrate, charging the said Hall with having, on or about the 12th of March, 1862, taken possession of a certain tract of land, leased by Aelelen from A. D. Woold/ridge, Chief Engineer of the State. The copy is certified by the constable to whom it was addressed, to be a true copy of the original commitment in his hands, and is shown to be the same copy which was appended to a petition for a writ of habeas corpus, presented by the plaintiff, while in imprisonment, and it is also sworn to be a true copy, by the constable, who was introduced on the trial as a witness. The defendant objected to its reception, on the ground that it was not the best evidence ; that the original should have been produced or accounted for, and1 also that it was not the best evidence to show that defendant was the prosecutor. The court below received it, .with the restriction that it was not proof, per se, of the defendant being the prosecutor or that the plaintiff was imprisoned at his instance, and to.this ruling the defendant excepted.
The rule which requires that the best evidence must be given of which the case is suceptible, only applies to reject secondary evidence where better.evi
The copy offered in evidence was taken from the original commitment while in the hands of the officer to whom it wiasaddresed. The magistrate by whom it was signed, had removed from the parish, and the constable and jailer were both interrogated as witnesses, and proved that the original was no longer in their possession. The copy of the commitment was, under these-circumstances, admissible in evidence to show that the plaintiff was arrested and imprisoned by virtue of a warrant which purported to have been issued on the affidavit of the defendant
The commitment alone, however, was not evidence sufficient to establish the fact that the defendant was the prosecutor, or that he had made such an affidavit as is recited in it, and the Court imposed the necessary restriction in receiving it. The affidavit itself, or proof by an examined copy, was the proper evidence and the only admissble documentary evidence to establish, per se, that the defendant was the prosecutor, 2 Starkie on Evidence, p. 918. If there had been no other evidence of that fact but the commitment, the action could not be maintained, but evidence was received on the trial without objection, to prove facts which show, in connexion with the commitment, that the plaintiff was arrested at the instance of the defendant. The presence of the defendant at the office of the committing magistrate, and his employing counsel to oppose the application of the plaintiff for his discharge on a writ of habeas corpus, when the same copy of the commitment, used as evidence in this case, -was used in suing out the writ, are facts which furnish conclusive evidence of the defendant’s being the prosecutor, and of the arrest and imprisonment having been made on the charge as stated in the commitment. Unleess it could have been shown that it was in the power of the plaintiff to produce the affidavit itself, this species of evidence was free from objection. The fact is also shown by other evidence, to which no objection was taken, on the ground that the affidavit itself should have been produced.
There are three other bills of exceptions on the part of defendant to the reception of evidence.
1st. The exception, we think was well taken, to the competency of Cyrus Bailiff, the plaintiff’s counsel, as a witness, on the gound that by his agreement with the plaintiff, he was to receive 25 per cent, on the amount recovered in the suit. The interest he had in the result rendered the witness incompetent, but he has deposed to no material fact which is not proved by other testimony,
2d. The testimony of Andrew Worley, Beter Hearn and John Hoplcins, taken under commission, was objected to on the following grounds: 1st, that the commission issued without any order of court; 2d, that no notice of the time and place mf taking this testimony was given to defendant or his counsel, although they had declined filing cross-interrogatories, and reserved the right of being notified of the time and place of taking the depositions. The court below overruled the objections on the ground that the defendant had answered to a rule taken on him, to show cause why the depositions should not be used, by stating these objections, and had lost his right to urge them by failing to call up the rule and have it disposed of before the trial. ¥e think his honor erred in overruling the objections on that ground, but the objections in themselves were untenable; the commission was issued within the State, and no order of court was necessary, nor was it necessary that the defendant should be notified
8d. The defendant offered to prove by the Jndge himself and by witnesses who were present on the. trial of the habeas corpus, that the Judge, in pronouncing his opinion, discharging the plaintiff, expressed a doubt as to his guilt. The testimony, we think, was properly rejected. The facts proven on the trial of the writ of habeas corpus were not taken down in writing, and it could not appear on what state of facts the Judge then formed an opinion. He might have entertained doubt from the absence of facts which were not shown on that trial, but which are shown on this. The trial of a writ of habeas corpus does not involve a decision on all the facts tending to establish the guilt or innocence of the accused. If the plaintiff had been indicted for the offence and tried, and upon all the evidence, the jury had deliberated as to his guilt, that fact, it appears, by the authorities cited, would be admissible as evidence of a probable cause. Starkie on Evidence, 2d vol., 916. But doubts which the Judge may have entertained and expressed on a preliminary investigation, not involving all the evidence as to the guilt or innocence of the accused, ought not to be received as evidence of probable cause, in an action for malicious prosecution. And when, as in the present case, it is the same Judge presiding over the trial before the jury, it would be manifestly improper to permit his opinion to exercise any influence over the jury, except by the expression of it while in the proper discharge of his duties as Judge.
On the merits, it appears, by the evidence, that the plaintiff was arrested, taken to a considerable distance before a magistrate and committed to prison, where he remained for the space of five days, on the charge of having taken possession of a tract of land on the Mississippi river, which the State recently purchased for the purposes of internal improvement, and which the defendant claimed to have leased from A. D. Wooldridge, Chief Engineer of the State. The document offered in evidence to establish the lease, is an act under private signature, in the following words: “Ihereby authorize Joseph A. 8. Achlen to take possession and have entire control of a certain piece of land belonging to the State of Louisiana, on the east bank of the Mississippi river, near the Raccourci cut-off, and to continue in possession of the same till it is disposed of by the State of Louisiana.” signed A. D. Wooldridge, State Engineer, dated 28th Eeb., 1852, and appears to have been placed on record in the office of the Recorder of West Feliciana on the 30th March, 1852, the day after the plaintiff was arrested. This act, as appears on the face of it, was not a lease of the land. %
The arrest was made under the 4th sec. of an Act of the Legislature, of the 6th April, 1843, Session Acts, p. 79, which provides “That any person who shall, after the passage of this Act, take possession of any tract of land, or any part thereof, or of any house or tenement, being the property of another person, without any legal right to do so, shall be guilty of a misdemeanor, and on conviction thereof, shall be punished by fine or imprisonment, or both.” The first section of this Act makes it a misdemeanor, punishable by fine or imprisonment, to cut or carry away timber growing or lying on the land of another. By an Act of the Legislature, passed the 17th March, 1852, but which had not the effect of a law at the date of the plaintiff’s arrest, it is made a penal offence to cut down or destroy timber on any land belonging to the State, for the purpose of trading or selling the same. These are the only laws having any bearing
The plaintiff had committed no offence under any of these statutes, and when arrested on the boat of his employer, moored at the river bank, he was as much under the protection of the law, as if he had been in his own house. It has not been seriously contended before us that the plaintiff was guilty of any offence against the law, but it is contended that in an action like this the plaintiff is bound to prove both malice and want of probable cause, and that he has failed to do so. Both of these ingredients, it is conceded, are by clear authority indispensable to entitle a plaintiff to recover in an action for malicious prosecution.
It is, however, equally well settled that malice may be inferred from the want of probable cause. It is an inference of fact which the jury may or may not draw from the want of a probable cause. We have no reason to believe the jury was not properly instructed in the charge given to them by the Judge, and by their verdict it appears they did infer malice from the total want of any legal ground for the imprisonment. See Johnson v. Chambers, Iredel’s N. C. Reports, 10th vol., p. 287.
The defendant does not appear to have acted on the advice of counsel before causing the arrest and imprisonment of the plaintiff, although it is shown he employed counsel to oppose the plaintiff’s discharge on the habeas corpus. The question, therefore, how far a party who causes another to be illegally arrested may be protected, or how far he may have the right to claim a mitigation of damages, by showing that he acted on legal advice, does not arise in this case.
The verdict met the sanction of the Judge who tried the cause and carries with it a moral weight which commands our approval.
The judgment of the court below is therefore affirmed with costs.