6 Barb. 83 | N.Y. Sup. Ct. | 1849
To sustain an action for a malicious prosecution, the plaintiff must show that the prosecution originated in the malice of the defendant, without probable cause. Proof of express malice is not enough, without showing also the want of probable cause. Probable cause has been defined, a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the offence with which he is charged. (2 Denio, 619. 3 Wash. C. C. Rep. 37.) Although the plaintiff is entirely innocent, if the defendant shows he had reasonable grounds for believing him guilty, at the time the charge was made, the action can not be sustained. The question of probable cause does not turn on the actual guilt or innocence of the accused, but upon the belief of the prosecutor concerning such guilt or innocence. (Foshay v. Ferguson, 2 Denio, 619. 2 Phil. Ev. 253.) The want of probable cause cannot be inferred from express malice, but malice may be implied from the want of probable cause. (2 Phil.
If a party lays the -facts of his case fully and fairly before counsel, and acts in good faith, upon the opinion given him by such counsel, (however erroneous that opinion may be,) it is sufficient evidence of a probable cause, and is a good defence to an action for a malicious prosecution, or for a malicious arrest. But in such a case it is properly a question for the jury whether such party acted bona fide on the opinion given him by his professional adviser, believing that the plaintiff was guilty of the crime of which he was accused, or that he had a good cause of action against the plaintiff. (Ravengol v. Mackintosh, 2 Bar. Cress. 691.) In Pangburn v. Bull, (1 Wend. 352,) which case came up by writ of error from the Albany common pleas, although the supreme court held that the common pleas erred in submitting to the jury the question of probable cause, that court nevertheless affirmed the judgment of the court below because it appeared, on the face of the bill of exceptions, that from tlxe facts undisputed at the trial there was a want of probable cause. Woodworth, J. in that case says, “the verdict ought not to be set aside for the error of the court below in this respect, because this court are called on to pronounce on that question; and if they see that the jury have not erred in point of law, although the charge was erroneous, no injury has been done to the defendant below of which he has a right to complain.”
In this case there was conflicting evidence, and the credibility of witnesses was to be passed upon. It was proper, therefore, for the learned justice to submit it to the jury to find whether the facts relied on as evidence of probable cause, or of the want of probable cause, were true. And if he had been requested by the defendant’s counsel, it would have been his duty to state to the jury his opinion, distinctly, whether probable cau.se was or
I am inclined to believe that the facts contained in the bill of exceptions, which are uncontroverted, are sufficient in law to make out a want of probable cause for the prosecution of the plaintiff on the charge of larceny. It appears that the plaintiff took the wagon from the premises of the defendant’s father, in the day time, professedly claiming it under a bill of sale from his brother; that the same day he took the wagon he told a witness with whom the top and seat had been left, to be repaired, that he had taken it, and that he claimed it as his own, and showed him the bill of sale under which he claimed it, and sent word by this witness to the defendant, that he had taken the wagon. It also appears that this witness, the same day, delivered to the defendant the plaintiff’s message, and told the defendant that the plaintiff claimed the wagon under the bill of sale from his brother. And it also appears that the defendant received all this information before he made the complaint against the plaintiff for stealing the wagon. It seems to me that these facts were sufficient evidence of the want of probable cause. In Weaver v. Townsend, (14 Wend. 192,) which was an action on the case for a malicious prosecution in causing the plaintiff to be arrested on a charge for feloniously taking propr
The motion for a new trial must be denied.