Ulmer v. Leland, 1 Me. 135

Ulmer v. Leland

1 Me. 135 | Me. | 1820

Weston J.

after stating the facts, delivered the opinion of the Court as follows :

Whether this action can be sustained for a prosecution of this kind, is a question not now presented to the consideration of the Court.

The essential foundation of an action of this nature is, that a legal prosecution has been resorted to and pursued without probable cause. From the want of probable cause, malice is implied ; but the former is not implied from the latter. If probable cause do exist, however malicious may have been the motive *138in which the prosecution originated, this action cannot be sustained.

Probable cause in general may be understood to be such conduct on the part of the accused, as may induce the Court to infer that the prosecution was undertaken from public motives.

It is of importance that the rights of the citizen should be protected ; but public policy also requires that prosecutions for offences should not be discouraged. Hence there has been a liberality of construction on the question of probable cause, in favour of the prosecutor, wherever he could be fairly understood to have been influenced by a presumption of guilt on the part of the accused. Thus where an inferior tribunal, first regularly resorted to, has convicted, probable cause has been decided to have been sufficiently established, although a Court of appellate jurisdiction has acquitted the accused, upon the most satisfactory demonstration of his innocence. 1 Wils. 232. 15 Mass. 243. And even where the evidence in support of the prosecution has been such as to induce the jury to pause, it has been ruled to be probable cause. Smith v. McDonald, 3 Exp. 7.

Whether probable cause exist or not, is a question involving-law and fact. Whether the circumstances relied on to prove its existence are true or not, is a matter of fact;—but if found to be true, whether they amount to probable cause is a question of law. 1 D. & E. 493.

The defendant moves for a new trial upon the ground that the jury were not properly instructed by the Judge, who presided at the trial, as to the law of the case; and because the verdict is against evidence.

Upon the second point we give no opinion.

From the report of the Judge it appeal’s that certain facts were proved, and that there was testimony in support of other facts; but there is nothing in the case from which it can be inferred that the latter were or were not found to be true. The facts being thus imperfectly.exhibited, we have it not in our power to determine with precision the question of probable cause as applicable to this case ; and upon this point therefore it is at this time neither necessary nor proper that wc should intimate any opinion. It further appears from the report that the defendant insisted at the trial that the jury ought to be instructed, as a mat*139ter of law, that probable cause was fully made out. We have no doubt, from the principles and authorities which govern cases of this kind, that it was the duty of the Judge to have stated his opinion distinctly to the jury whether probable cause was or was not established, if the evidence introduced by the defendant proved, to their satisfaction, the truth of the facts upon which he relied. It does not appear, however, that the Judge gave any instructions to the jury upon the question of law involved in the case; but it does appear from his report, that he left it to them to decide as a matter of evidence. This omission on the part of the Judge is assigned by the defendant as the principal ground upon which to support his motion for a new trial; and we are satisfied that for this reason the motion ought to prevail.

New trial granted.

Note.—The Chief Justice gave no opinion in this case, having formerly been of counsel with the plaintiff.