39 N.Y.S. 601 | N.Y. App. Div. | 1896
Lead Opinion
It is- undoubtedly true that the judgment should be' sustained, if the termination of the prosecution was an issue in the case, and there was a failure of proof on that issue, even though the trial court dismissed the complaint solely on the ground of the failure of proof as to the want of probable cause. In Marvin v. Universal Life Ins. Co. (85 N. Y. 278) it was held that although the court put its decision in granting a motion for a nonsuit solely upon a ground not tenable, yet, if there was another sufficient ground for granting the motion, of which the plaintiff was fairly and fully apprised at the time the motion was granted, the judgment should be sustained. In the case at bar the defendant made a failure of proof as to the termination of the prosecution one of his grounds of motion for dismissing the complaint, and this question was discussed and considered. We are, therefore, called upon to consider whether this was a sufficient ground for dismissing the complaint. The plaintiff insists that there was no such question involved in the case under the pleadings. Our attention is called to the sixth and seventh subdivisions of the complaint. The former was admitted by the answer, the latter was denied. The answer contained no new or affirmative allegations with reference to this matter. By the sixth subdivision of the complaint it was alleged that on the 23d day of May, 1893, at the second district Police Court in the city of Mew York, an examination was had before the police justice on the charge of perjury
It seems to us quite clear that the termination of the prosecution, favorably to the plaintiff was sufficiently alleged in the sixth sub- • division, and that the allegations in the seventh subdivision were entirely unnecessary.
The complaint was a good one without the seventh subdivision. The allegations contained in the latter subdivision were merely conclusions of law so far as the termination of the prosecution was concerned, and the allegation that the . defendant thereafter abandoned the prosecution was entirely immaterial. All the essential facts constituting a termination of the prosecution favorably to the plaintiff were alleged in the sixth subdivision, and having been admitted in the answer, there was no issue as to this question to be tried or determined by the jury. The claim now made by the defendant is that the police justice at the time of the examination and the . decision alleged in the sixth subdivision of the complaint, was without jurisdiction, and his action then was void, the matter having theretofore been passed upon by him, and the case having passed into the Court of General Sessions. No such allegations were contained in the answer, and there having been no denial of the facts stated in the sixth subdivision, the question suggested could not be raised by a denial merely of the facts alleged in the seventh subdivision. The only question before us on this appeal is, therefore, whether the complaint was properly dismissed for failure of proof of want of probable cause. The want of probable cause was an issue upon which the plaintiff had the burden .of proof. The two elements of probable cause, so far as we are interested in the question here, were an honest belief of guilt, and reasonable grounds for such belief. These two elements must have concurred in order to have afforded justification. (Farnam v. Feeley, 56 N. Y. 451.)
The real question here is whether from all the evidence, circumstantial and otherwise, the jury would have been justified in drawing the inference and finding affirmatively the fact that the defendant did not honestly believe the plaintiff’s guilt, or, if he did* that such belief was not based upon reasonable grounds. There was a very bad condition of feeling between the parties, and there was a long delay after the evidence was given, alleged, to have constituted the perjury, before the prosecution therefor was begun. ’ In the meantime other litigations had been had between the parties, in which the defendant had been more or less unsuccessful, and finally this prosecution was commenced. There was- some considerable conflict in the evidence given. The defendant himself was a witness, and his somewhat extended examination was before the jury. The jury had an opportunity to observe his demeanor, and to see what sort of a man he was. The question of the credibility of the witnesses, and especially of the defendant himself, was for the jury. The question whether the defendant really and honestly believed the plaintiff guilty, and what facts and circumstances were proved, ' and whether these, established to the satisfaction of the jury, were such as to induce in a reasonable mind the. belief of guilt, were questions for the jury, and in view of these suggestions the question of want of probable cause could only be taken from the jury and decided by the court if upon the condition of things developed, in the evidence, and which could have been found by the jury most
We do not think in view of the province of the jury, and the right of a party to their verdict rather than the decision of the court as to the facts, that this question.was one that could be taken from the jury and decided by the court. Whatever may be said as to the circumstances being fairly sufficient to induce a reasonable man to believe in guilt, the question still remained, whether the defendant really and honestly believed plaintiff guilty, or whether this action was the result of his malice, ill-feeling and desire' to injure the plaintiff. This was to be determined by the jury, upon a consideration of all the evidence, including, defendant’s knowledge of and relationship to the plaintiff, and we cannot say the jury may not have been satisfied that there was the absence of an honest belief in guilt, and if so that the evidence would not have sustained such verdict.
Our conclusion is'that the complaint was improperly dismissed, and that the judgment and order appealed from should be reversed and a new trial ordered, with costs of the appeal to appellant to abide the event.
Van Brunt, P. J., and Patterson, J., concurred; Ingraham and O’Brien, JJ., dissented.
Dissenting Opinion
I am unable to agree with Mr. Justice Williams, as I think that upon the undisputed evidence, and assuming that every, fact testified to by the plaintiff and his witnesses is true, not only does the plaintiff fail to show want of probable cause, but the testimony is overwhelming that the defendant had probable cause to believe and did actually believe that the plaintiff was guilty of - the crime with which he was charged. It is undisputed that the defendant' had a litigation with the elevated railroad, and upon that litigation the plaintiff was called as a witness to testify as to the character*of the defendant for truth and veracity. On cross-examination, when asked as to the persons from whom he had heard remarks to justify Ms statement as to defendant’s character, he specified five indi
The plaintiff was a relative of the defendant’s, and, so far as appeared, was a volunteer witness before the commissioners, anxious to do the defendant an injury. And he having testified thus to communications received from five individuals about the defendant, where each of the five individuals denied the truth of his story, four of them backing such denial up by their oaths, it seems to me entirely clear that defendant was fully justified in believing that the story which the plaintiff told was false, and that he had been guilty of the perjury charged.
The law does not require a man to have in his possession all of the evidence necessary to convict a person of a crime before he makes a charge. If so, the rule as to probable cause would have no existence, for, if a person had competent legal evidence sufficient to convict before he made the charge, a conviction would always follow, and thus there could be no action for malicious prosecution. What is required is that the defendant should have probable cause to believe the plaintiff guilty, and that he did believe him guilty; and, unless it is shown that the defendant did not have such probable cause, the action will not lie.
The defendant thus having the - sworn statement of four of the five individuals contradicting plaintiff’s testimony, the defendant consulted Hr. Allan, who had stated before the commissioners that the plaintiff was guilty of perjury, as to whether or not he should prosecute the plaintiff; and, according to the testimony submitted by the plaintiff, Hr. Allan advised him that he had not probable
If there is any obligation upon a person who actually believes and has good reason to believe that a crime has been committed to inform the police officers and magistrates of the facts within his knowledge, certainly this defendant cannot be held liable for doing what he did. The fact that he thought it safer to follow the advice of Mr. Johnson and Mr. McIntyre, one of the leading public prosecutors of this county, as to the guilt of the defendant, rather than the advice of Mr. Allan, whose advice was in conflict with his statement which he had made in summing up before the commissioners,, is certainly no evidence to justify a finding that this defendant did not believe the plaintiff guilty;, and upon these facts he most certainly had probable cause to believe him guilty.
The rule is well settled and conceded by Mr. Justice Williams' that upon the undisputed facts and the version given by the plaintiff of the disputed facts, taken together, a question of law is presented to the court as to whether or not the defendant had probable cause for believing in the plaintiff’s guilt, and whether he did actually believe him guilty, and that unless it appears from such evidence that there was such a want of probable cause for belief in the plaintiff’s guilt, the court is bound to direct a verdict for the-defendant. I think that not only was there an absence of proof of.' want of probable cause in this ease, but that the evidence clearly established that the defendant had probable cause to believe, the
The judgment should be affirmed, with costs.
O’Brien, J., concurred.
Judgment and order reversed and new trial ordered, with costs, to appellant to abide event.