251 F. 833 | 4th Cir. | 1918
In an action for malicious prosecution, the defendant in error, here called the “plaintiff,” obtained a judgment for $5,000 against the plaintiff in error, herein referred to as the “defendant.”
On the 30th of November, 1915, at Hopewell, Va., an agent of defendant swore out a warrant charging plaintiff with embezzlement of
Something over a month before he had entered the employ of the defendant as an operator and clerk in its Hopewell office, which at that time was conducted as a branch of the older station at Petersburg. Hopewell was then a busy place. Many messages were sent from it, and considerable sums were there paid in for telegraphic transmission to other points. Every one of the four or five operators employed was authorized' to receive money. He was expected at once to enter its receipt upon the sheet kept for that purpose, charging himself with it, by putting his initials against the entry. After the close of the office in the evening, this sheet was checked up, and each operator turned over the money for which he was responsible. He was not authorized to retain any of it. His own salary was paid, not out of these funds, but direct from the Petersburg office. The operators were in the habit of going oút for their meals, and, while there was a safe in the office into which, at such times, they could put money, it does not appear that they were required so to do, or even that such was the usual practice.
On the morning of the day named, one Strickland, the head of the Petersburg office, received a letter from a superior official, directing him to dismiss plaintiff for misconduct. In what the misconduct consisted was not stated, and, so far as the record shows, was not known to anybody who had anything to do with the prosecution. Strickland went to Hopewell, and somewhere about 11 o’clock in the forenoon read the letter to the plaintiff. He had occasion to go elsewhere in Hopewell, and while he was away from the office it so happened that its head, one Seagle, was also called out. During their joint absence, the plaintiff left, talcing with him what money he had collected that morning, which, as was subsequently discovered, amounted to a few cents over $246. Strickland subsequently came into the office and learned that neither the plaintiff nor the money was there. As his train was about to leave for Petersburg, he did nothing at the time, but on his arrival at his destination telephoned Seagle. On learning that the plaintiff had not been seen, he told Seagle to find the plaintiff and get the money. If he could not get it in one way, to get it in another ; if he had to have the plaintiff arrested, to do so, but that he should get the money, if he could, without having an arrest made. About 2:30, Seagle swore out the warrant and the arrest followed. The plaintiff had the mone)^ with him, and, when taken into custody, turned it over to the police officials, with the statement that it belonged to the defendant.
The defendant numbers its assignments of error from 1 to 6; but, as one of these contains three specifications of respects in which it is said the court below went wrong, there are in reality eight assignments in all. They will be discussed, not in the order in which they appear
Refusal of a New Trial.
The defendant complains that its motion for a new trial was denied. That ruling is not reviewable here.
Exclusion of Evidence of Plaintiff’s Intoxication.
The court refused to permit the defendant to prove by the police justice that the plaintiff, when brought before him some 4% hours after Iiis arrest, seemed to be under the influence of liquor. This assignment was not argued by the defendant, orally or in its brief. Upon the record in this case, the court was right in excluding the testimony, however admissible it might have been under some other circumstances.
Admission of Newspaper Accounts of the Arrest.
Refusal to Instruct Verdict.
“Where a right to recover punitive damages from a master arises from a ratification by the master of the act of the servant, assuredly the act must have been ratified before the action was instituted.”
The Claim for False Arrest.
Originally the plaintiff claimed both for false arrest and for. malicious prosecution. The defendant asked the court to tell the jury that there was no evidence of the former. This instruction was not given. In the testimony not .a word was said as to any false arrest, as distinguished from the malicious prosecution. It is therefore not probable that the omission of the court hurt the defendant. It is unnecessary to decide whether it did or not, as for another reason the case must go back.
In this case it was highly important to the defendant that the jury should be made to understand that, if S'tricklaud and Seagle had probable cause to believe that the plaintiff had embezzled its money, it could not be mulcted, notwithstanding the evidence showed that defendant’s agents, in what they did, had no other purpose than to recover its funds, then in plaintiffs possession. In the instructions actually given, we do not find that this rule of law was stated to the jury with the clearness which the defendant had the right to ask.
Is Abandonment or Dismissal of the Prosecution Evidence of Want of Probable Cause?
This rule gives equal weight to all dismissals after hearing. The real probative force of such action, of course, in fact, if not in theory, depends upon the character and capacity of the particular official who heard the charge, and upon the completeness with which the evi
We do not find that this question has been passed upon in Virginia. For ourselves we are of opinion that the safest rule is to -hold that acquittal, dismissal, and abandonment are equally inadmissible to prove lack of probable cause, although, of course, always competent evidence to show that the prosecution has terminated favorably to the accused. The whole question is well considered in Davis v. McMillan, 142 Mich. 395, 105 N. W. 862, 3 L. R. A. (N. S.) 928, 113 Am. St. Rep. 585, 7 Ann. Cas. 854. In coming to our conclusions, we have not limited our consideration to the citations made by the parties, but have tried to examine all the cases to which text-books and digests give reference. No good purpose would be served by here listing them. We think that the conclusions to which we have come are in accord with the deductions which ma)r be reasonably drawn from what the Supreme Court said in Brown v. Selfridge, 224 U. S. 189, 32 Sup. Ct. 444, 56 L. Ed. 727; and in Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116.
Between the time in which an original complaint may be made and the end of the prosecution, many things may happen, even when, as in this case, the interval does not exceed a few hours. After the plaintiff had turned in defendant’s money, it was highly improbable that the prosecution could be carried to a successful conclusion, and yet a reasonable man, who knew all the jury were entitled to find the defendant’s agents knew when they swore out the warrant, and nothing more, might well have done precisely what they did. If the criminal casé had gone to trial, almost any jury would have felt that the prompt return of the money raised a reasonable doubt of guilt. A thousand other things leading to the conclusion that a successful prosecution was scarcely to be hoped for might happen, or might come to the knowledge of the prosecutor after the proceedings had been' begun, and before they were finally dismissed by the magistrate, either at the request of the prosecutor, or upon his own judgment. It is not well that one who has caused an arrest, and who comes to recognize the hopelessness of going further, should, by stopping there, be held in a subsequent malicious prosecution case, to have made evidence agáinst himself. To persist in a criminal prosecution after a conviction has become unlikely is, in the absence of exceptional circumstances, to persecute the accused, to waste the time of the court
Eor error in refusing this instruction, and for failure to instruct the jury, as requested, that, if there was probable cause, the defendant’s motives in instituting the prosecution were immaterial, the judgment must be reversed.