55 F. 217 | 2d Cir. | 1893
Lead Opinion
The plaintiffs in error were defendants in the court below in an action for malicious prosecution founded upon the arrest and trial of the plaintiff upon a charge of larceny. It appeared upon the trial that the plaintiff was arrested June 9, 3889, upon a warrant issued by a magistrate of Middlesex county, M. J., based upon a complaint made by the defendant Charles W. Sanders, which stated, in substance, that the plaintiff had feloniously stolen and taken away 120 red cedar posts, and 16 trunks of felled red cedar trees, the goods and chattels of Charles W. Sanders. On the next day an examination was had before the magistrate, and after a hearing he committed the plaintiff for trial, and admitted him to bail. At the September term of the Middlesex oyer and terminer an indictment was found against him by the grand jury; and on the trial of that indictment, in October, 1889, the plaintiff was acquitted. Thereafter the present action was brought. The facts shown were these: In March, 1888, the plaintiff rented of Charles W. Sanders a farm in Middlesex county, known as the “Sanders Farm,” for a term of five years, and shortly after went into occupation as a tenant. In February, 1889, proceedings were taken by Mr. Sanders to dispossess him, and pending, these proceedings he rented another farm near by, known as the “Jacques Farm.” Shortly before the making of the criminal complaint against him, he caused to he removed from the Sanders farm to the Jacques farm the posts and logs mentioned in the complaint. The defendants, who lived at a distance, were informed by anonymous letters that the plaintiff had removed these posts and logs. Thereupon they consulted Mr. Shafer, a lawyer, who had been' their professional adviser. He advised them to visit
We have not deemed it necessary to consider any of the numerous exceptions taken upon the trial, as to which error has been assigned, except those to the refusal of the trial judge to direct a verdict for the defendants, and to his instructions upon the question of probable cause, and his refusal to instruct upon that question as requested by the defendants.
However malicious may have been the private motives of the defendants in prosecuting the plaintiff upon the criminal charge, they were protected in doing so, provided there was probable cause to believe him guilty of the offense. Mitchell v. Wall, 111 Mass. 492; Munns v. Dupont, 3 Wash. C. C. 37; Foshay v. Ferguson, 2 Denio, 617. Probable cause is 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 offense with which he is charged. Upon the trial- of an action for malicious prosecution, where the facts are in doubt, or depend upon conflicting testimony, the question of probable cause is a mixed one, of law and fact, to be determined by the jury under the instructions of the court. But if the facts are undisputed, or clearly established, it is for the judge to determine their legal effect, and direct the jury accordingly. In other words, whether the circumstances alleged to show probable cause, or the contrary, are true, and existed, is a matter of fact; hut whether, supposing them to be true, they amount to a probable cause, is a question of law. When the facts bearing upon that question are disputed, it is the duty of the court to instruct the jury what facts, if established, will constitute a probable cause for the prosecution, and to submit to them only the question as to the existence of those facts. Bulkeley v. Keteltas, 6 N. Y. 384; Besson v. Southard, 10 N. Y. 236; Stewart v. Sonneborn, 98 U. S. 187.
It was not disputed that, pending the proceedings to remove the plaintiff from the Sanders farm, he caused the posts and logs men
If, as the testimony on the part of the defendants tended to show, the plaintiff was noc a bailee of the property at the time he carried
Dissenting Opinion
(dissenting.) I dissent from the result to which the court came in this case, but not from tbe correctness of the abstract rules of law which are stated in its opinion. I dissent because my examination of the record leads me to the conclusion that those rules have no adequate relation to the questions upon which the case was tried in the circuit court, and upon which it turned. The defendants put the strength of their defense upon the alleged fact that in ignorance of law, and seeking information as to the proper course to pursue, they fairly presented the facts to a competent lawyer, and acted upon his suggestion and advice. The defendant Charles W. Sanders testified that before he saw the lawyer he had no knowledge or information as to whether the facts constituted a ground for a criminal complaint; that he made no suggestion, in any form or shape, that criminal proceedings
•■Lev!, by advice of counsel. Question. You believed so because your counsel advised ? A. That is it exactly. Q. Did you ¡between the day you made the complaint that Mr. Palmer had stolen those posts feloniously? A. No, I did not believe anything about it until I saw my counsel.”
The defendants thus substantially placed their case, as to the probable cause which they had for ins li biting the criminal complaint, upon their can lion and care in obtaining legal advice, and submitting to counsel the question of their further action. The charge was full, in accordance with the repeated requests of their counsel in this regard. It is to be read in the light of the issue which was actually before the jury, and it is apparent that the judge charged the jury upon the points actually, and, not theoretically, in issue. Whether there were reasonable grounds of suspicion, which should warrant belief in the plaintiff’s guilt, arising from the facts which had come to the defendant’s knowledge, apart, from the kuowledge and advice which they received from the lawyer, was a question which was not actually in the case. The first error which the «curt finds was committed was not, apparently, excepted to. The necoad, for the reasons already stated, did not exist.