34 Mont. 308 | Mont. | 1906
delivered the opinion of the court.
Action for malicious prosecution. The plaintiff had verdict for $550. Judgment was entered in his favor for this amount and costs of suit, taxed at $102.60. The defendant has appealed from the judgment and an order denying him a new trial. He seeks a reversal of the judgment and order on the grounds: (1) That the evidence is insufficient to sustain the
The justice was examined as a witness for the plaintiff, and, in connection with his statement, the record of the proceedings before him was introduced. He was requested to read the entries made by him upon his docket. This was done for the purpose of showing that the prosecution had terminated. All of the entries went in without objection. Among other things the docket shows the following: “After hearing the evidence in the above-entitled cause, the defendant found not guilty and discharged; and there seeming to be no grounds for complaint, judgment is hereby entered against George Corscadden, complaining witness, for costs.” After this had been read to the jury, counsel for defendant objected to the part following the word “discharged,” and moved to strike it out ou the ground that it was immaterial. The objection and motion were overruled.
It is argued that this was gross error, in that the judgment of the justice upon the very point at issue, to-wit, whether the prosecution was without probable cause and malicious, was thus allowed to go to the jury as a prior adjudication of it. We think the evidence was wholly irrelevant and incompetent, as well as immaterial, whether offered as a prior adjudication of the issue on trial, or as an expression of opinion by the justice thereon. ' (Farwell v. Laird, 58 Kan. 402, 49 Pac. 518; Apgar v. Woolston, 43 N. J. L. 57; Helwig v. Beckner, 149 Ind. 131, 46 N. E. 644; Casey v. Sevatson, 30 Minn. 516, 16 N. W. 407; Fletcher v. Chicago etc. Ry. Co., 109 Mich. 363, 67 N. W. 330; Bays v. Herring, 51 Iowa, 286, 1 N. W. 558; Anderson v. Keller, 67 Ga. 58; Skidmore v. Bricker, 77 Ill. 164; Israel v. Brooks, 23 Ill. 526.) But, even so, the appellant cannot complain. The objection was not made until after the evidence had been admitted. It therefore came too late. Since this is so, the court committed no error in refusing to strike out the evidence. If
During the cross-examination the justice was asked by counsel for defendant whether, when the warrant of arrest was issued and the plaintiff came into court, he had committed him to jail or required him to give bail for his appearance pending a hearing. He said that he had not, but had permitted him to go at large on his own promise to appear. Later, on re-examination, he was asked why he had not required bail. His answer was, in substance, that he did not require it of defendants if he had confidence in the person, and that he had confidence in plaintiff; besides, the plaintiff agreed to appear, and his father, who was with him, guaranteed his appearance. This statement was permitted to go to the jury over defendant’s objection, and it is argued that it was incompetent as tending to establish a good reputation for the plaintiff in the community by thus indirectly introducing the mere personal opinion of the justice.
There was no issue in the evidence touching the reputation of the plaintiff in the community. The plaintiff did not put it in issue, nor was it attacked by the defendant. The matter was allowed to rest upon the presumption indulged by the law in favor of every person that he bears good repute among his neighbors until the contrary appears. The court was apparently of the opinion that, since it appeared that the justice had not followed the course contemplated by law in such eases, it was proper to permit him to explain why. As affecting the merits of the ease, we think the reason why the justice indulged the plaintiff as he did was immaterial; but we cannot see that the mere use of the word “confidence” could have the effect upon the minds of the jury which counsel claim it must have had.
As tending to show probable cause and absence of malice on the part of the defendant, counsel offered to prove by one Thomas that the plaintiff had confessed to him, about two years prior to his arrest, that he had at one time boarded at a restaurant in St. Louis, Missouri, and had made a habit of stealing articles of silverware from the restaurant and giving them to his relatives, all of which had been communicated to the defendant prior to the institution of the prosecution. Upon objection, this was excluded as irrelevant, and we think properly so.
All the books agree that the plaintiff must prove both want of probable cause and malice, and that, where the absence of the former is established, the presence of the latter may be inferred. In other words, when the proof tends to show the absence of the former, a prima facie case is made for the jury. The burden then rests upon the defendant to rebut this prima facie case; and this he must do by any evidence tending to show the existence of probable cause and the want of malice on his part. Probable cause, however, is not to be confounded with actual guilt. The latter must always be established by proof beyond a reasonable doubt, while “probable cause is only such a state of facts and circumstances as would lead a careful and
In tbe particular case, then, tbe inquiry must be, not whether the plaintiff was actually guilty, but whether the facts and circumstances were such as to warrant the defendant, as a prudent and conscientious man, to believe him guilty; and while mere reputation or the general report of plaintiff’s guilt is not sufficient to establish probable cause, it is not necessary that the defendant should have seen and conversed with the witnesses themselves. This it is often impossible to do; just as in case of public officials whose sworn duty it is to prosecute violations of the law brought to their knowledge, though they cannot always see and converse with those who have actual knowledge. All that is required is that a prudent and conscientious inquiry be made, and if it then appears that testimony is at hand or obtainable justifying a well-founded belief that a violation of the law can be established and a conviction secured, there is probable cause to proceed with the prosecution; otherwise both the public officer and private citizen would be precluded from action to redress public wrongs, until witnesses had been seen and conversed with and a complete ease made out.
The general reputation of the plaintiff at the time that the prosecution was instituted against him, becomes an important fact in the inquiry. For, naturally, the average prudent man would more readily impute guilt to a man of bad criminal reputation in the community, than to one of good character and standing. In this class of eases, therefore, evidence of the previous bad reputation of plaintiff is always admissible to rebut the proof of want of probable cause, as well as to mitigate the damages. (3 Sutherland on Damages, 708; Newell on Malicious Prosecution, 465; Rosenkrans v. Barker, 115 Ill. 331, 56 Am. Rep. 169, 3 N. E. 93; Pullen v. Glidden, 68 Me. 559; McIntire v. Levering, 148 Mass. 546, 12 Am. St. Rep. 594, 20 N. E. 191, 2 L. R. A. 517.) But, as Mr. Newell observes: “None of the cases go so far as to permit proof of particular instances of bad conduct.” Reputation can be proven only by the testi
But defendant contends that it also tended to show his good faith and, therefore, to rebut the allegation of malice. In this we think there is no merit; for, conceding that it might otherwise be admissible for this purpose, the offer to prove is too indefinite, in that it does‘not show when the confessed larcenies were committed, nor that the defendant believed the confession of them to be true. If he did not believe the hearsay report of them made to him, they would not in any ease be the foundation of a belief of plaintiff’s guilt of the larceny 'charged by himself. So far as the proof shows, the confession, though true, may have related to crimes committed many years ago, at a time too remote from the time of this controversy to have any evidentiary value as tending to show good faith in plaintiff.
In a later paragraph the jury were told that if the defendant honestly believed the plaintiff guilty, and acted upon such belief, and it was founded upon facts which would create a belief in a reasonable man that there was probability that the plaintiff had stolen the hogs in question, they must find for the defendant. Both of these instructions were as favorable to the defendant as he could demand; and, reading the whole charge together, we do not see how the jury could have understood that the defendant could not rely upon his own honest belief as well as the advice of counsel, or either.
Paragraph 25 of the charge is as follows: “In an action for malicious prosecution, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant, not exceeding in all the amount claimed in the complaint.” It is, said of this instruction that it is not justified by the pleadings,, for that there is no claim made therein for punitive damages. It is also argued that, since malice is an essential element to be established by the plaintiff in an action for malicious prosecution, this instruction, in effect, warranted the jury in finding for the plaintiff, without reference to whether the proof established the want of probable cause.
The Civil Code provides: “Sec. 4290. In any action for a breach of an obligation not arising from contract where the-defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may
Nor do we think the instruction excluded from the jury consideration of the element of the want of probable cause. The court had theretofore repeatedly and correctly told the jury that the plaintiff must establish both want of probable cause and malice, and that they must find both from the evidence, or that their verdict should be for the defendant. The effect of the instruction was to inform the jury that if they found these, they might, in fixing the actual damages, in consideration of the fact that malice was apparent, also add such amount as they thought the circumstances justified, by way of example. The statute includes actions for malicious prosecution, and since this action is founded upon malice, it must follow that punitive damages may, if the jury think proper and the court so instructs them, be awarded in every such case. Since the statute states the rule, the court did not err in following it. If counsel desired further specific instructions upon the subject, he should have requested them. Besides, it is reasonably apparent that the jury did not award punitive damages, for, since it found that the prosecution was malicious, it seems that the small verdict of $550 would indicate that they were satisfied to award actual damages only.
The evidence relied on might, on another trial, produce a different result, though this is not apparent. Had the defendant made out a ease of diligence, the district court might,, upon the showing made, have granted a new trial; but he does not make out such a ease. Inquiry of a few men in a populous community, “as opportunity occurred” does not show that defendant acted with that degree of diligence which the necessity of the ease required; but that he became diligent only after he found the result of the trial adverse, and when smarting under a realization of defeat. It is apparent that if defendant had used the same diligence before the trial as he did afterward, he would have been successful in finding all the witnesses necessary, for we cannot assume that all the persons in the community who were competent witnesses and who must have
The defendant seems to have had a fair and impartial trial. We find no error in the record through which he has suffered prejudice. We think the judgment and order should be affirmed. It is so ordered.
Affirmed.