Herbener v. Crossan

20 Del. 38 | Del. Super. Ct. | 1902

Boyce, J.,

charging the jury:

Gentlemen of the jury:—We have been requested to instruct you to render a verdict for the defendant. This we decline to do.

The plaintiff in this action seeks to recover damages for malicious prosecution, alleged to have been instituted by the defendant against the plaintiff without probable cause, before Albert T. Williamson, a Justice of the Peace, in this county, upon complaint made by the defendant to the effect that the plaintiff did, on the second day of February, 1901, break into his house in the night time and did steal and carry away certain moneys, goods and chattels then therein. It is charged by the plaintiff that upon said complaint having been made by the defendant before said Justice, on the sixth day of February the same year, the defendant caused process for his arrest as well as a search warrant to be issued by said Justice and placed in the hands of William C. Pierson, a constable of this county, who in company with the defendant, on the said sixth day of February, arrested him, the plaintiff, and also made search of his house for the money, goods and chattels of which the defendant claimed he had been robbed.

Both the arrest of the plaintiff and the search of his premises are admitted, but the defendant in one of his pleas to the declaration, justifies the part which he took in the criminal prosecution, alleging in substance that he had probable cause to believe the plaintiff guilty of the breaking into and entering, or of being concerned in the breaking into and entering his house, and stealing and carrying away said moneys, goods and chattels, basing his belief, as he alleges, upon the result of an investigation made by the said Justice and subsequently reported to him relative to the perpetrator of the said offense, the commission of which he had previously made known to the Justice.

You have patiently and no doubt attentively listened to the evidence produced in this case, and it is unnecessary to summarize more particularly the contentions between the parties to this action. You are the exclusive judges of the weight and value of the evidence, and it now becomes your duty to consider and apply it to the law of the case as announced to you by the Court.

In an action for malicious prosecution it is incumbent upon the plaintiff to prove that he has been prosecuted by the defendant • as alleged in his declaration, and that said prosecution has terminated in his favor; that the prosecution was instituted by the defendant maliciously and without probable cause; and that he has by reason thereof sustained damages. If the plaintiff has failed to satisfy you by a preponderance of evidence as to any one of these essential elements necessary to the maintenance of this action, he cannot recover.

The gravamen of the action is that the plaintiff has improperly been made the subject of legal process to his damage. (2 Greenl. Ev., See. 449).

It is admitted that the plaintiff was proceeded against criminally and that the prosecution terminated in his favor; but it is denied that the defendant was the prosecutor, and it is contended that he only acted under the directions of the Justice. Upon this point we say to you that if you find from the evidence that the defendant voluntarily and without coercion made the complaint upon which the warrants of arrest and search were made and that he was of his own accord active and instrumental in bringing the plaintiff-before the Justice in the criminal proceeding of which the latter complains, then he was the prosecutor in said proceeding. If, under this instruction, you find that the defendant was the prosecutor, then it will still remain for you to ascertain and determine whether the prosecution was instituted both maliciously and without probable cause. There must be a concurrence in these j for even if a prosecution be malicious, and yet if there was probable cause, an action cannot be maintained. As to whether the defendant was actuated by malicious motives, we will say for your guidance that any unlawful act done wilfully and purposely to the injury of another, is, as against that person, in a legal sense, malicious. (2 Greenl. Ev. Sec. 453).

Malice in law is either express or implied. Express malice as applied to a malicious prosecution has been defined by this Court to mean ill-will against a person, and is indicated by the disposition or temper of mind with which the party did a particular act as where he did it with the view to injure a particular individual generally, or in some specific manner, or that he acted from personal animosity, or an old grudge. And it has likewise been held that if it be shown that there was a want of any probable cause for the prosecution, the law implies malice from that circumstance.

Wells vs. Parsons, 3 Harr, 505.

Touching the question of want of probable cause, it has been ruled by this Court that neither proof of express malice nor the acquittal of the defendant in a criminal prosecution is sufficient evidence of want of probable cause; and it is, therefore, necessary and incumbent upon the plaintiff to negative the existence of probable cause at the time of the institution of the criminal proceeding by some affirmative evidence—that is, as was said by Chief Justice Gilpin, in the case of Anderson vs. Callaway, 2 Houst., 324, the plaintiff must make some proof that there was no reasonable ground for the charge, and' that it was without any probable cause to sustain it, or to induce a candid belief in it; for, as was declared by Chief Justice Booth, in the case of Wells vs. Parsons, supra, however malicious may have been the motives of the defendant towards the plaintiff, he is protected by the law in having prosecuted the plaintiff, if he had probable cause for so doing. This rule of law which protects a party for instituting or conducting a criminal charge, where there is probable cause for it, proceeds upon principles of policy, convenience and justice.

Under the uncontroverted facts in this case, the question of probable cause is a most important element which you have to consider, and the question thus presented is not whether the plaintiff was guilty of the charge preferred against him before the Justice, nor whether the defendant made the complaint from malicious motives, but whether the defendant had at the time of making the complaint and causing the arrest of the plaintiff and the search of his house, reasonable cause for so doing. (Davis vs. Hardy, 13 E. C. L. R., 152.) Whether there was or was not probable cause depends upon the defendant’s personal knowledge or information communicated to him of facts and circumstances at the time the prosecution was begun sufficient to excite in the mind of a reasonably cautious and prudent person a reasonable belief in the plaintiff’s guilt. It is immaterial whether the defendant acted on his own knowledge of the facts, or upon information received from what he in good faith may have regarded reliable sources.

The question of what constitutes probable cause was said in the case of Fagan vs. Knox, 66 N. Y., 525, not to depend upon whether the offense complained of has been committed in fact, nor whether the accused is guilty or innocent, but upon the prosecutor’s belief, based upon reasonable grounds. And in the case of Cooper vs. Utterback, 37 Md., 282, probable cause was held to mean the existence of such facts and circumstances as would excite the belief in a reasonable mind that the plaintiff was guilty of the offense for which he was prosecuted.

If when the defendant made the complaint and caused the issuance of the warrants under which the plaintiff was arrested, and his house searched, he believed that the plaintiff had committed, or was a participant in the commission of, the offense charged in the complaint, then there was probable cause for his action, and your verdict should be for the defendant.

Wells vs. Parsons, supra; Boyd vs. Cross, 35 Md., 197.

If you find that the defendant was actuated by malicious motives and without probable cause, your verdict should be for the plaintiff, and in that event you should award such damages as you may find from the evidence that the plaintiff has sustained, and for this purpose you may take into consideration his arrest, detention, search of his dwelling, the injury to his reputation and feelings, together with such expenses, if any, as he may necessarily have incurred in and about the said prosecution.

Verdict for defendant.