12 Conn. 219 | Conn. | 1837
Exceptions were taken to the proceedings in the court below, which appear on the motion for a new trial, and to the decision of the judge refusing to receive the motion to set aside the verdict, which is the foundation of the motion in error.
The court admitted a copy of a document, purporting to be a record of Joseph Bennett, a justice of the peace, as evidence conducing to prove the arrest, prosecution, trial and acquittal of the plaintiff, on the search-warrant, as alleged in the declaration. The defendant insists, that his objection to this evidence should have been sustained. He supposes that the proceedings before the justice, were ministerial and not judicial, and therefore, not the subject of a record ; that the warrant to arrest was illegal and void, not being authorized by law; and consequently, that the plaintiff’s remedy was by action of trespass, and not on the case for a malicious arrest.
It is unnecessary to decide whether our constitution and laws authorise the arrest of a defendant, upon a search-warrant. We express no opinion on that point. But if it be prohibited, the consequence deduced from it, by the defendant, does not follow. It is not a legitimate inference from the premises assumed. An action on the case for a malicious prosecution, may be maintained, where the court has no jurisdiction, if the proceedings are malicious and unfounded, and without probable cause, and occasion legal damage to the party accused. Precedents of such actions are frequent in the history of judicial trials; and they are conformable to the principle^ which
Nor is it necessary for us to determine, whether the copy of the record of the justice was legally admissible : for the motion states, that the plaintiff introduced the original complaint and search-warrant, accompanied with satisfactory parol proof, that the latter was issued and served at the instigation and by the procurement of the defendant; that the plaintiff was arrested thereon ; and that he was tried, acquitted and discharged. To this evidence, no objection was made. The copy proved no more than this ; and we cannot, therefore, but see, that no injustice has been done the defendant, by the introduction of the copy. We have repeatedly held, that the application for anew trial is addressed to our discretion. We never sustain it, where the verdict is right, and consistent with the facts and justice of the case. Bates & al. v. Coe, 10 Conn. Rep. 280. Johnson v. Blackman, 11 Id. 342.
The defendant also claimed, that the proceedings before the justice, were irregular, erroneous and illegal, inasmuch as he refused to permit him to testify in support of the complaint, and denied a motion for an adjournment, founded on reasonable and proper grounds ; and the defendant asked the court to instruct the jury, that these facts, if believed by them, afforded strong and sufficient evidence that he had probable cause for the prosecution ; and that his motives were honest, sincere and without malice in these proceedings. It is hardly necessary to remark, that the instruction asked, was properly refused ; for if the evidence was admissible, the jury were to judge whether he acted honestly and without malice. The court would not have been justified in withdrawing from their consideration, this matter of fact peculiarly within their province. Coit v. Tracy & al. 8 Conn. Rep. 268. Ravenga v. McIntosh, 2 B. & C. 693. McDonald v. Rooke, 2 Bing. N. C. 217. The instruction which was given, was well adapted to the case, and conformable to the rules of law applicable to it. The court
It is also objected, that the judge at the circuit omitted to charge the jury as to the existence of probable cause, derived from the proof offered, that the “piece of drab cloth” de
Another exception taken to the proceedings on the trial, is founded on the refusal of the judge to charge the jury, in the manner claimed by the defendant, as to what amounts to probable cause, and the proof of malice essential to sustain the action : and also on the supposed erroneous instruction which was given, on these points. The instruction asked was this : “ If such circumstances existed as would cause a suspicion, in a reasonable mind, that the plaintiff had taken the articles described in the search-warrant, from the defendant, it amounted to probable cause; and that the malice of the defendant, and the innocence of the plaintiff, must be obvious to the jury, to authorise a verdict for the plaintiff.” Independent of other objections to this direction, it would clearly have been open to the objection, that it was not sufficiently precise and definite ; and was calculated to mislead the jury as to the principles of law, by which they were to be governed. Under such a
As to the claim for an instruction, “ that the malice of the defendant and the innocence of the plaintiff must be obvious to the jury,” the same want of precision, and the same danger of misconception, would have attached to it. The word “obvious,” might have received different interpretations, by different jurors. Some of them might have supposed it meant the highest attainable certainty; others, that it was to be understood as meaning absolute certainty, to the exclusion of all doubt; and others, might suppose it meant reasonable certainty. The court, very properly, secured the parties against the consequences of these different interpretations, in the instruction which was given, and which is now to be examined.
It was as follows: “ If they found such facts' proved, as would reasonably induce an impartial and reasonable mind to suspect and believe, that the plaintiff had stolen the property of the defendant, as claimed by him, or was secreting the same; such facts would amount to sufficient evidence of probable cause; but that mere conjecture or suspicion did not amount to such probable cause as would justify the defendant — “ That it was incumbent on the plaintiff, to prove malice in the defendant, in the prosecution of the plaintiff; but if they found, that the defendant had proceeded without probable cause, they might presume from that circumstance, that the prosecution was malicious. / And yet, if the defendant had, to their satisfaction, rebutted such presumption, which he might do, and
The only objection to this charge, suggested in the argument, (except the points already considered,) is, that it advances a rule which is unreasonable and impracticable. It is said, that the defendant, being a party interested, cannot be impartial ; — that he cannot view the facts in the same equitable and just light as they would be seen and weighed, by a stranger to the transaction ; — that if he is required to divest himself of all feeling, and to conform his suspicions and belief to the standard “ of an impartial and reasonable mind,” it would be difficult, if not impracticable, in any doubtful case, to prove probable cause.
It is further said, that the phrase “probable cause,” has reference to apparent guilt merely ; and that reasonable suspicion, although not amounting to belief, is a sufficient justification. We are satisfied with the rule, as stated by the court below ; and we think it sustained, by high authority. The jury were informed, that mere conjecture, or suspicion, did not amount to probable cause ; and this is unquestionably correct. They were also informed, that to constitute it, the facts must be such as would reasonably persuade an impartial and reasonable mind, not merely to suspect or conjecture, but to believe the plaintiff guilty. We cannot readily perceive how there can be a well grounded or reasonable suspicion of the existence of a fact, without there is also a belief of it. We easily see, there may be mere suspicion or conjecture, without any reasonable evidence to induce belief; and such suspicions ought not to be made the ground of legal proceedings, without incurring the consequences of failure. The law ought to require, and, we think, it does require, of him who institutes proceedings of the character before us, to have a reasonable belief, that the charge which he makes, is true; that he should not be permitted to
The question between these parties, in the second case, arises upon the motion in error. It appears, that a motion to set aside the verdict, for the alleged improper behaviour of some of the jurors, was made after the expiration of twenty-four hours from the time when the verdict was recorded. The court refused to receive it, it not being filed in seasonable time ; and this decision we are called upon to revise. The defendant claims he has a legal right to make this motion, at any time during the term of the court in which the trial is had; that this is a matter which cannot be regulated by practice ; and if it can, there has been no practice inconsistent with this claim.
We have not been referred to any statute, which prohibits the court from limiting a time within which motions of this kind shall be filed. It was said, indeed, that at the revision in 1821, a provision was made, that if any juror shall converse with any person concerning the cause, except his fellows, while it is under consideration, or shall voluntarily suffer any other person to converse with him, the verdict, on motion, may be set aside; and imposing a fine upon such juror, if convicted of such improper conduct. So far as the provision relates to setting aside the verdict, it is in affirmance of our common law. It introduced no new rule. The section in which it appears, was adopted, as it is stated in the note by the revisors, p. 50., to sanction, by law, a practice, which had prevailed, and which was supported by a judicial determination, to permit the jury, after a cause had been committed to them, to separate and take refreshments, so as to give them a reasonable opportunity to consider the cause and agree upon their verdict. There is no essential difference, in respect to the time when motions in arrest and to set aside verdicts, should be made, between those which are for extrinsic, and those for intrinsic causes. If there be any, it would seem reasonable that a shorter time should be allowed, in cases like the present, than in those where the grounds of the motion arise out of the record. If the legislature did not think proper to fix the time of the filing them, it is reasonable to suppose they did not intend to alter the existing practice on the subject. They were conversant with this practice; and nothing appears, which leads us to suppose they
It has been suggested to us, that doubts are entertained, whether Sundays are not embraced within the twenty-four hours allowed for filing these motions. We do not know the origin of these doubts; and we think proper to add, they are without foundation. Sundays are to be exchided in the
The motion for a new trial is denied.
There is nothing erroneous in the judgment of the superior court; and it is affirmed.
New trial not to be granted.
Judgment affirmed.