| Pa. | Mar 14, 1887
delivered the opinion of the court, March, 14th, 1887,
Several exceptions were taken to the rulings of the court below on-the admission and .rejection of evidence, and are here1 now assigned'for error.: We cannot sustain them. “The gist of false imprisonment is unlawful detention, and the general rule is that malice will be inferred from the want of probable 'cause, so far at least as to sustain the action:” Mr. Justice Trunkey, in McCarthy v. De Armit, 99 Pa., 63" court="Pa." date_filed="1881-11-21" href="https://app.midpage.ai/document/mccarthy-v-de-armit-6236987?utm_source=webapp" opinion_id="6236987">99 Pa., 63. From what is here said, it is obvious that Neall’s action was open to defeat by proof of probable cause for the prosecution, and further that, even in the absence of probable cause, it was important to disprove malice in fact, and that if for no other purpose than in mitigation- of damages, ' Hence, the statements made to-the -justice by the prosecutor, and by which he was induced to issue the warrant, were relevant. As to the assign
1. Was the court right when it said to the jury, “ The next question for you to determine is whether there were such circumstances surrounding the transaction as warranted the prosecutor in making the complaint to the justice in issuing the warrant of arrest, thus placing the plaintiff in the position of a criminal ” ? We are constrained to answer this interrogatory in the affirmative. A justice of the peace is not to be presumed to be learned in legal technicalities, hence, if the information set out a cheat of any kind, it was sufficient on which to ground a warrant. But that information alleged that James E. Neall by misrepresentation and trickery has defrauded me in the sale of curbing, and has appropriated the same to his own use,” This charge, as here set forth, is not very definite, forasmuch as it is difficult to say whether it was intended to charge embezzlement, or obtaining goods on false pretences, but, that a cheat of some kind is thereby charged, no one, we think, will deny, and, if so, it was sufficient to warrant the justice’s action, and it was the business of the prosecuting officer, when the case reached his hands, to determine what should be the character of the indictment.
2. Was the court right in its instruction to the jury that, if the stones were to be paid for in cash before removal,.they continued the property of Hart, though Neall had possessed himself of them, and their sale by the latter, and appropriation of the money arising therefrom to his own use, would constitute such a fraud as justified Hart in making the complaint on which the warrant issued? This in effect raises the question of probable cause which, as we think, was properly submitted.
If the testimony of Hart and J. W. Morgan is to be believed, there was such cause for the prosecution if nothing more. The plaintiff obtained a delivery of the curbing on the cars under a contract to pay when so delivered, and then, taking advantage of the defendant’s performance, he shipped the curbing to market, under the pretence that he would pay the next day, but, instead of so doing, he sold the curbing, and refused payment altogether. Let it be that this was not embezzlement in.its technical sense, yet were the prosecutor’s goods gotten under pretence of a contract and through a lie.In the case of the Commonwealth v. Burdick, 2 Pa., 163" court="Pa." date_filed="1845-01-31" href="https://app.midpage.ai/document/commonwealth-v-burdick-6227238?utm_source=webapp" opinion_id="6227238">2 Pa., 163, Mr. Chief Justice Gibson makes use of the following language:
The judgment is affirmed.