112 Va. 169 | Va. | 1911
delivered the opinion of the court.
On the 24th day of July, 1908, J. N. Seagle sued out a warrant in the city of Richmond, charging that Joseph L. Mosby, of said city, within thirty days last past, “did unlawfully and feloniously steal, take and carry away one case of Piedmont cigarettes of the value of $85.00 in U. S. currency, the property of the Southern Railway Co.” Upon this warrant Mosby was arrested, carried before the police justice of the city, and there, after a preliminary hearing, was sent on to the grand jury. In October, 1908, the grand jury of the hustings court found an indictment against Mosby, containing three counts; the first count charging him with stealing a case of cigarettes on June 2, 1908, the second with stealing a case of cigarettes on the...... day of February, 1908, and the third with stealing a case of cigarettes within twelve months last past.
The trial on May 18, 1909, resulted in a verdict of not guilty as charged in the first count of the indictment, the second and third counts having been quashed.
The attorney for the Commonwealth, having then full knowledge of all the testimony, on June 7, 1909, again had Mosby indicted for the July, 1908, offense, but upon his trial in November, 1909, he was also acquitted. Thereupon, Mosby instituted this suit against the Southern Railway Company for malicious prosecution, and upon the trial thereof the jury found a verdict in favor of the plaintiff for $6,600, and judgment was entered thereon, which judgment is before us upon a writ of error awarded the defendant company.
The first two assignments of error having been practically waived in the argument here, we need only consider the third and last assignment, which relates to the ruling of the trial court in refusing to set aside the verdict of the jury because contrary to the law and the evidence.
The facts of the case are as follows: Seagle was a special agent of plaintiff in error, and during the winter of 1907 and spring of 1908 had a number of claims against the railroad referred to him for tracing which appeared to be lost shipments. One of these claims was for cases of Piedmont cigarettes, and upon investigation it was found
Prior to the issuing of the warrant on July 24, 1908,
A. L. Tyler, a special officer of the Southern Railway Company, had on a certain occasion told Mosby that he was going home to rest, and Mosby had told him that he (Mosby) thought it would be a good idea to come down there early in the morning and late in the evening to watch the shed, and instead of then going home to rest Tyler went to the passenger station and came around the rear of the cars and into the shed twenty to forty minutes after his interview with Mosby. When he got in there he saw a box being carried out of this receiving shed at door 9, without any .paper or bill of lading passing between Mosby and the driver; the rule being that if a box had been received in error and was being returned to a driver he should deliver up the bill of lading which had been issued therefor. When Tyler went over to Mosby and Mosby saw him, Mosby turned and said in a quick and impatient way to the man at the wagon, “Go ahead,” and motioned to him to go ahead. Whereupon Tyler asked Mosby where the box was going, to which Mosby replied, to the Coast Line; and while Tyler at the time accepted Mosby’s statement, the more he thought about it the less he was satisfied, and his suspicions became aroused and he brought the matter to Seagle’s attention a number of times, but no impression was made thereby on Seagle at that time, as he had a high opinion of Mosby.
There is some evidence to show that the box of which Tyler was speaking was a box of books from Richmond College, but there is no testimony that Seagle ever heard this prior to the swearing out of the warrant against Mosby.
What followed the sending on of Mosby to the grand jury by the police justice we have related, and we have set out, perhaps at greater length than was necessary, the facts and circumstances which led to his arrest on the warrant of July 24, 1908, in order to show that it is idle to talk about that prosecution having been set on foot recklessly or without investigation of the facts and circumstances pointing to defendant in error’s participation in the theft of the lost cases of cigarettes.
We need not refer to the authorities as to when malice may be inferred from the want of probable cause, since the instructions in this case, as is conceded, correctly propounded the law to the jury on that subject; and the inquiry as to whether there was want of probable cause to believe in the guilt of Mosby is narrowed by Instruction No. 8, given by the trial court and not contested, which told the jury that if Seagle believed the statement of Morris and swore out the warrant, and that thereupon Mosby appeared before the police justice, who upon an examination of witnesses sent Mosby on to the grand jury, and the grand jury, upon the hearing of witnesses, “found true bill of indictments for said offense as charged, the same is prima facie evidence of probable cause, and unless rebutted by the plaintiff the jury must find for the defendant, notwithstanding-the subsequent acquittal of the plaintiff.”
The accomplice, Morris, made a complete and full confession and statement to Seagle, to the effect that there was a regular gang engaged in stealing cases of cigarettes from the station of the Southern Railway Company; that a man whom he described and afterwards identified as defendant in error was the man at the station connected with the railway who permitted him (Morris) to get cases of cigarettes, and to whom he (Morris) paid at various times twenty-five to thirty-five dollars, which Duke had given him to pay defendant in error for letting him get the cigarettes. Morris had also told Seagle where he could, and where Seagle did, find a part of the top of a box of one of these cases of cigarettes, and instead of there being contradiction of these statements made by Seagle, as to what Morris told when confessing his connection with the systematic stealing of cigarette cases, they are - fully confirmed by Wiley, the bicycle policeman, who was present and heard Morris5 statement.
Now it turned out at the trial of defendant in error upon the first indictment found against him, that Tyler, who had also been an informant of Seagle as to suspi
Taking these sayings of the defendant in error and considering them in connection with information Seagle then had, we cannot agree that they were, so convincing of defendant in error’s innocence that a reasonably prudent man should have desisted in his purpose to have him arrested as a participant in a regular and systematic stealing of cigarettes from the station of a railway company.
The defendant in error stands twice acquitted by a jury of his countrymen of the charges preferred against him, and with the reasons of those juries for concluding that he was not guilty we are not concerned; but it will not do to say that because Tyler proved to have a very treacherous memory, or was even unworthy of belief at the trials of
In Womack v. Circle, 32 Gratt. 332, the opinion by Anderson, J., after stating that, “Malice may be implied from want of probable cause; but not necessarily. In the celebrated cause of Johnstone v. Sutton, 1 Durn. & East, p. 544, Lord Mansfield and Lord Loughborough said: ‘From the want of probable cause malice may be, and most commonly is, implied. But that must be shown by the plaintiff’;” quotes as follows: “In Herman v. Brookenhoff, 8 Watts (Pa.) 240, Chief Justice Gibson said, ‘In a criminal prosecution want of probable cause muse be combined with malice.’ Again he says, ‘want of probable cause is evidence of malice, though inconclusive in the origination of a prosecution.’ Cases may be readily conceived, where the prosecution was instituted upon grounds of suspicion which would not amount to probable cause, where there was an entire absence of ill-will or malice on the part of the prosecutor. In such cases the action will not lie, because there must be combined malice and want of probable cause shown. And combined malice may be implied from the want of probable cause if the circumstances will warrant the implication, yet the existence of malice may be repelled
“In an action for malicious prosecution, want of probable cause must be determined by the facts known to the defendant and which influenced him in instituting the alleged malicious proceeding, and not by facts developing on the trial.” Scott v. Shelor, 28 Gratt. 891.
In an instructive opinion in the case of Porter v. Mack, 50 W. Va. 581, 40 S. E. 459, it was held, that “On the question of probable cause in an action for malicious prosecution, the facts and circumstances, knowledge and information, must be viewed from the standpoint of the defendants ánd not that of the plaintiff; and if they, in good faith, being men of ordinary prudence, entertained the reasonable belief that it was their duty to institute and maintain the proceedings complained of, they cannot be held liable therefor.” In that case it is further said that where the defendants in an action for malicious prosecution, being men of ordinary prudence, believed in good faith from their own knowledge and understanding of the facts and circumstances, or from information received from reliable sources, that the judicial proceedings instituted by them were necessary and justifiable, they cannot be held liable, although it shall afterwards be made to appear in a suit for that purpose by a preponderance of the evidence that such proceedings were without just foundation.
As we have seen, there is no ground upon which it could be fairly concluded that Seagle knew that the sources from which he got his information were not reliable before he instituted this prosecution, and we have further seen that the authorities maintain, and as the court in this case instructed the jury, that information received from one ad
The trial court rightly told the jury that if they found that defendant in error, up to the time of his arrest, uniformly bore a good reputation for honesty and integrity, and that if plaintiff in error knew his reputation to be such up to the time of his arrest, then that fact was a proper one to be considered by the jury, in connection with all the other evidence in the case, in determining whether or not plaintiff in error had probable cause to believe, and did believe, in good faith, that the defendant in error was guilty of the crime charged against him; but we fail to find in the record evidence sufficient to rebut the prima facie evidence of probable cause consisting of the undisputed facts, that after examining the witnesses the police justice sent the defendant in error on to the grand jury, and that the grand jury found true bills (two) of indictment against him, although he was afterwards acquitted of both. Instead of carrying the burden upon him throughout the trial of this case of showing combined malice and want of probable cause for the arrest of defendant in error, the evidence, viewed as upon a demurrer thereto, discloses such a state of facts as refutes the existence of malice or ill-will on the part of Seagle, and amply shows that Seagle, as the agent of plaintiff in error, procured the arrest in an honest belief of the guilt of the accused, a belief shared in by the police justice and two grand juries.
Much is said, arguendo, in cases like this about character being put lightly in jeopardy, and the law fully upholds that theory, but it is to be borne in mind that in the in
It would seem hard, it is true, that a man may be prosecuted for a supposed crime, and yet have no redress against the prosecutor, and yet this must frequently be so, for the preservation of the peace and good order of society requires that even the innocent may be compelled to submit to such inconveniences and hardships rather than that citizens should be deterred from instituting prosecutions where there is reasonable or probable cause to believe the accused guilty. Good faith on the part of the prosecutor is always an important if not a vital element of inquiry, and is always a sufficient justification, except where an unreasonable credulity is manifested in inducing the prosecutor to draw conclusions of guilt which persons of ordinary prudence and judgment would not have drawn. Newell on Mal. Pros. 269.
In this case we are of opinion that the prosecution complained of was instituted in good faith and for probable cause, that the verdict of the jury complained of is without sufficient evidence to sustain it, and the judgment thereon will be reversed, the verdict set aside and the cause remanded.
Reversed.