Welker v. New York Central Railroad, 118 A. 615

Welker v. New York Central Railroad

118 A. 615

Pa.

1922

Check Treatment

Opinion by

Mr. Justice Pbazeb,

Plаintiff sued to recover damages for malicious prosecution, the result of his arrest on a charge of larceny, by Campbell, one of defendants, a police officer in the employ of defendant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍railroad compаny. At the trial of the case the court gave binding instructions in favor of defendant, on the ground that plaintiff failed to provе want of probable cause for his arrest.

*84The failure on plaintiff’s part to prove want of probable cause was sufficient warrant in itself for the binding instructions here complained of; but, in addition, we find no substantial dispute as to the faсts showing that probable cause for the prosecution appeared. In fact, plaintiff’s own testimony shows prоbable cause. Plaintiff at' the time of his arrest was an employee of defendant railroad company as а brakeman and extra conductor on local freight trains. Preceding plaintiff’s arrest there had been losses of mеrchandise from these trains due to thefts and the duty of ascertaining, if possible, the guilty parties was assigned to Campbell. On the evening before the arrest plaintiff’s wife telephoned Campbell, requesting him to call at her home and, on his arrival there, solicited his influence to adjust certain domestic difficulties existing at the time between her and plaintiff. On being informed by Campbell that his authority was confined to matters concerning the railroad company, Mrs. Welker said, “I will not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍protеct him [plaintiff] any longer,” and informed him her husband was in possession of a large quantity of property contained in trunks on the second floor of the house, a portion of which he had recently brought home and which she suggested Campbell examine. An investigation disclosed the trunks contained seven new shirts, thirty-two pairs of new socks, a dozen three cornered and half dozen flat files, a number of new tools, several of which were stamped with the name of defendant company, three carbide lamps and various other articles. Many of these corresponded with goods the theft of whiсh Campbell was at the time investigating. While an examination of the property was being made, plaintiff returned home аnd Campbell left the house intending to make a thorough investigation the following morning. Late that night he received a telephone message from plaintiff’s son to the effect that his father was removing the goods contained in the trunks which Campbell had partially examined; a warrant was immediately procured *85from a local justice of the peace and early the following morning Campbell located the property in a garage loaded on a truck reаdy to be taken to Williamsport. Plaintiff was then arrested and subsequently given a hearing and held under bail for trial; later, however, after full investigation, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍defendant’s attorney advised that the evidence was insufficient to justify further proceeding with the prоsecution and recommended that a nol pros be entered, which was subsequently done by leave of court upon motion of the district attorney. This action then followed.

The above recited facts are practically undisputed. During the course of the trial plaintiff offered to prove he purchased the goods at different places, or otherwise acquired them in a proper manner; the offer was properly refused. In cases of this charаcter the question is not whether the person charged with crime is guilty of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍offense, but what were the indications of his guilt at the time the arrest and prosecution took place. The test is the prosecutor’s belief in the existence of probable cause, based on reasonable grounds existing at that time; accordingly the. inquiry must relate to the facts then known and as they then appeared: Robitzek v. Daum, 220 Pa. 61; Stratton v. Jordan, 77 Pa. Superior Ct. 596, and cases cited. In view of the fact that losses of goods from trains on which plaintiff was employed had occurred shortly before plaintiff’s arrest, that a number of articles similar to those lost were found in his possession, and the quantity of such goods was larger than the average person in plaintiff’s circumstances would purchase and have on hand for his ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍personal use, together with the suspicious circumstanсe that plaintiff removed the goods from his home at night, immediately following the visit of defendant railroad company’s officer, whom plaintiff knew to be a police officer in its employ, the court below was fully justified in concluding the circumstances were ample to warrant the inference that plain*86tiff was guilty of the charge made against him and thus furnished рrobable cause for his arrest.

In the first assignment of error complaint is made of the action of the court in sustaining аn objection to a question whether there was produced at the hearing before the justice of the peace evidence that the goods in question were stolen. The refusal to admit this testimony was proper. The question sought to set up the opinion of the witness against the conclusion of the committing magistrate, whose record shows that, аfter hearing the testimony of several witnesses named, the accused was held in bail for court. The opinion of the Avitnеss, if permitted, would have furnished no legitimate basis for determining whether probable cause for the arrest existed.

Under thе second assignment, plaintiff contends error was committed in receiving evidence of facts learned through declarations or acts of plaintiff’s wife, on the ground that she would not1 have been a competent witness against him, and, consequently, statements made by her were incompetent. While the wife would not have been a competent witness against her husband, there is no rule of law which prevents a third person from instituting criminal proceedings based on facts learned through information given by the wife of the accused. The admission of such facts in evidence is not permitting the wife to testify against her husband: Com. v. Johnson, 213 Pa. 432.

The judgment is affirmed.