Threefoot v. Nuckols

68 Miss. 116 | Miss. | 1890

Woods, C. J.,

delivered the opinion of the court.

The seventh instruction given by the court below for the plaintiff —appellee—is in these words: “ The court instructs the jury for the plaintiff, that in determining the question whether the prosecution of the plaintiff by defendant was malicious and without probable cause, they should only consider the facts and circumstances tending to show that the prosecution was justifiable, which were in the knowledge of defendant at the time the arrest was made,” and the action of the court in giving this instruction is assigned for error.

It is to be noticed that the charge is not confined to the proposition that there could be no justification, although, on the whole case, as developed on the trial, probable cause was shown, if the prosecutor did not know the facts constituting probable cause when he began the prosecution. Even this proposition has been strenuously combated by eminent jurists, and its correctness is distinctly and ably denied by Ruffin, C. J., in the case of Bell v. Pearcy, 5 Iredell. Said that enlightened judge: “Another observation dropped from his Honor, which, as applicable to this case, we deem not entirely accurate, and therefore notice. It is the direction that upon the inquiry into probable cause, only such facts are to be considered as were known to the defendant when he instituted the prosecution.There is no doubt that a defendant in this action may allege that the plaintiff, though acquitted in the prosecution, was actually guilty, and that he may prove the guilt by any evidence in his power, though discovered after the prosecution began, or after it ended.”

That the current of authority, however, supports the doctrine that the test of probable cause is the facts as they were known to the prosecutor at the time he began the prosecution, is not to be denied. The text-books and reports bear out, in the main, the contention that probable cause may not be evidenced by facts ascertained by the prosecutor subsequent to the commencement of the prosecution. For all the purposes of this case, this proposition may be fully admitted. But its admission does not settle the exception taken by appellant to this 7th instruction. This 7th instruction goes far beyond the rule which we have adverted to. It not only shuts off from the consideration of the jury the subsequently acquired facts, as they might have been supposed to affect the question of probable cause, but it likewise excluded all subsequently acquired facts as they might be supposed to affect the question of malice; and, furthermore, it put out of the jury’s view these subsequently discovered facts as they affected the question of the plaintiff’s guilt of the criminal charge made against him. Surely no reason can be assigned, nor any respectable authority produced to justify the shocking proposition that the guilt of the plaintiff in a suit for malicious prosecution may not be shown in any manner and by any proofs, no matter where or when or how acquired. Season and conscience revolt at the bare thought of. a proven criminal recovering damages against the prosecutor, even though the prosecutor’s motives were bad, and his knowledge of the facts establishing the guilt of the accused was defective.

The want of probable cause and malice must conjoin to warrant a recovery in cases of this character, and no man is to be punished by an adverse judgment in a suit for malicious prosecution, because when he began the criminal prosecution he had notin his possession facts sufficient to create probable cause. There must not only be a want of knowledge of such facts, but there must be a malicious intent conjoined thereto, and the guilt of the accused must in every case be a perfect defense. As was said in Johnson v. Chambers, 10 Iredell: “ The defendant is only to be fixed with a want of probable cause by what he knows when he commences the prosecution, although he is allowed to protect himself by any facts which he is able afterwards to prove, which show the plaintiff to be guilty, or which tend to show it.” This protection of the defendant below was virtually withdrawn from the jury by the instruction we are considering. In every conceivable case where justice is administered under the forms of law, it must be true that if the plaintiff in a suit for malicious prosecution was in fact guilty as charged, he can have no right of action against his prosecutor, no matter what the motive of the prosecutor, and no matter when the facts establishing plaintiff’s guilt were discovered. The guilt of the accused must always be a perfect defense, and this defense may be made out by any facts, no matter when the knowledge of them was acquired. 5 and 10 Iredell, in cases cited supra ; 6 Rhode Island, 37 ; 3 Blackford, 241; 49 Indiana, 156.

It is also assigned for error that the court improperly refused the ninth instruction asked by the defendant. This instruction declares : “ If Nuckols, without authority, sent the pension warrants to his wife, and then concealed from Threefoot that he had collected such warrants, he was guilty of embezzlement.” The evidence in the case, even the admitted facts in the case, we are strongly inclined to believe, abundantly warranted this charge. The testimony of Nuckols himself admits the collection of the warrants, the appropriation by himself of them in sending them to his wife, and his concealment, or failure to disclose these' facts, though pressed by Threefoot for a full disclosure of all his collections, and this alone went far to establish the charge of embezzlement. We do not forget that Nuckols attempted to justify his conduct in this particular matter, by declaring that his employer owed him, and that he had a right to pay himself in this way. But this attempted justification is no justification. If Nuckols had been a stranger to Threefoot, and not in his employment, and had, without authority, taken Threefoot’s money to pay a debt due him, he would have been guilty of larceny. Being Threefoot’s employé, the transaction, in its legal aspects, is governed by the same principles, and, in the absence of other evidence, Nuckols was guilty of embezzlement. There is an end to the reign of law, when men are allowed to seize and appropriate to their own uses the money of another, even though that other be a delinquent debtor.

Though Threefoot was in ignorance of the collection of the warrants and of Nuckols’ appropriation of them when he began criminal proceedings, his right to make this proof was conceded by the court below in admitting the evidence on this point on the trial, and the defendant had a right to have the jury properly instructed on this branch of the case. The instruction would be more satisfactory to us if it were fuller and more precise, yet, as it is, it was substantially correct, and the court should have given it, either as asked, or in some modified form, to the end that the mind of the jury might have been directed to the consideration of the facts establishing the plaintiff’s guilt.

For these reasons, the judgment must be reversed, but we cannot content ourselves in the discharge of our duty by a simple reversal.

While in trials of this character it is to be borne in mind that criminal prosecutions are not inconsiderately and without reason or probable cause, to be permitted by the courts, yet it is none the less important to be borne in mind that a pi’osecution set on foot by one citizen against another, for a wrong that affects the public, is regarded with more favor than a prosecution involving civil rights between private persons, and that, on considerations of policy and convenience and necessity, the prosecutor of a crime against the public shall have protection from legal condemnation if he had probable cause, even though private motives and personal malice were present with the prosecutor.

Whatever Threefoot’s motive in beginning this prosecution, the whole evidence taken together manifestly fails to show that he had not probable cause. The verdict was against the overwhelming preponderance of the evidence as it touched the question of probable cause. Indeed, we do not hesitate to declare that in our opinion the facts disclosed in the record before us go far beyond demonstrating probable cause. In the face of the evidence, the verdict was palpably and grossly erroneous, and should have been unhesitatingly set aside.

If this verdict and judgment are permitted by us to stand, only the most irresponsible and foolhardy will ever dare again to put on foot prosecutions against offenders, even where the proof in their possession may be so great as to generate full belief of guilt. May that day never come, for now, even with the aid and assistance of good citizens who are willing to join the state in its attempts to enforce the criminal law and punish offenders, it cannot be denied that the ends of public justice are not always attained, and that many a criminal goes unpunished.

Reversed and rema/nded.