Anderson v. . How

Potter, J. This is an appeal from the judgment of the General Term of the City Court of Brooklyn, affirming a judgment dismissing the complaint upon the trial of the action. The action was to recover damages for the malicious proseeu *338 tion and arrest of plaintiff by the defendant. The arrest of the plaintiff was made under a warrant issued upon the application and affidavit of defendant made March 16, 1885, charging the plaintiff with having willfully and maliciously broken the water-closet in a stable on Vanderbilt avenue, between De Kalb and Willoughby avenues, in the city of Brooklyn. Upon the trial before the magistrate the plaintiff was acquitted. The evidence introduced upon the trial of the charge before the magistrate was, with other evidence, introduced upon the trial of this action. Upon the whole evidence the trial court dismissed the complaint upon the ground that the defendant had probable grounds to make the arrest and that the defendant acted as a reasonably prudent man should have done under the circumstances. It is manifest, from this holding by the trial court, that, in its judgment, the evidence fully justified the conduct of the defendant in making the complaint. Trials in actions of this character do not, ordinarily, need to proceed so far as was done in this case, as the burden is upon the plaintiff to show the want of probable cause and malice upon the part of the defendant, and unless the plaintiff’s evidence establish the want of probable cause and malice, the defendant will be entitled to a dismissal of the complaint. (Thaule v. Krekeler, 81 N. Y. 428; Marks v. Townsend, 91 id. 590.) Another principle especially applicable to this class of cases is this, that where there is no dispute about the facts, the question of the existence of probable cause, or, as generally stated, the absence or want of probable cause, is a question for the court and not for the jury. (Bulkeley v. Keteltas, 6 N. Y. 384; Heine v. Blair, 62 id. 24, 25.) The appellant insists upon this appeal that the trial court erred in deciding this question and in dismissing the complaint and in refusing to submit that question to the jury for decision. That brings us to the consideration of the evidence, and, in considering the evidence we are to observe, as a guide, .another rule of law applicable to this class of cases, viz., “ What *339 constitutes probable cause does not depend upon whether the offense has been committed in fact, nor whether the accused is guilty or innocent, but the prosecutor’s belief based upon reasonable grounds.” (4 Cush. 288; Fagnan v. Knox, 66 N. Y. 525, 528.) In considering the evidence, for the purpose of determining whether there was probable cause or not, it would be, at least, liberal towards the appellant, and, perhaps, entirely decisive of the question, to have regard mainly, if not altogether, to the evidence of the plaintiff and his witnesses upon the trial of this case and upon the trial before the magistrate upon the criminal charge made by the defendant against him, which was also introduced upon the'trial of this action. The plaintiff was a plumber and was employed as such by the defendant, who was engaged in building or fitting up a stable in the city of Brooklyn, to do the plumbing for the same at an agreed price. The plaintiff had finished his job and surrendered the key of the stable to the defendant some two weeks before this difference arose between them. The defendant had paid plaintiff the whole of the agreed price except $65. Plaintiff had demanded the balance, but the defendant had refused to pay it on account of a crack in the stone sill done in plumbing the sewer, at least, until he could see the owner of the premises for whom the defendant with his partner, had undertaken to do the entire job. The conduct of the plaintiff for which the defendant had made the complaint, and the arrest therefor occurred on the morning of the 16th of March, 1885. No complaint was made by defenda/nt in respect to a/ny part of the job of plumbing, a/nd no words ever passed between the parties as to any defect or change i/n the work, in a/ny respect, except as to the broken sill. The plaintiff had procured an action to be commenced by summons, issued on the seventh day of March, against the defendant, to recover the $65 balance of the contract-price for plaintiff’s plumbing, and returnable at eight o’clock a. m. on the sixteenth of March. Issue was joined in that action on the sixteenth, but not till after plaintiff was arrested and *340 brought before the magistrate for his alleged misconduct at an earlier period of the sixteenth. On the fourteenth of March, plaintiff had sent his servant to this stable. He went into the stable and commenced taking out the closet without the knowledge or consent of the defendant, and when the defendant was informed of his being there, he ordered him to leave, and he left, and the plaintiff was informed of it. This was on Saturday — the fourteenth Hpon the following Monday morning, the plaintiff, with the same or another man in his employment, went to the stable without the knowledge or consent of the defendant. The door of the room containing the water-closet in the stable was locked, and the plaintiff procured a lock-smith with a pick to open this door, and then, in the absence of, and without the knowledge or permission of the defendant to be, or to do anything upon the premises, the plaintiff and his servant entered the room containing the water-closet and its setting or seat, and commenced to .take down and remove the same. At tins stage of the plaintiff’s proceeding the defendant was made aware of them and came to the stable and at once asked what right the plaintiff had to do what he was doing ? The setting or box inclosing the closet and the attachments of the water-closet had been put in by direction of the defendant, and were completed. This evidence was substantially given by the plaintiff and his witnesses. I have forborne to refer to the evidence of defendant and his witnesses. I think it would have served to bring out more fully the transaction, but I desired to present it just as it appears from the testimony of plaintiff and his witnesses. The situation which confronted the defendant when he came upon the scene was this, that the plaintiff and his servant, after having been sent away and forbidden the Saturday night previous, had on the following Monday morning returned to the stable and procured a locksmith to pick the lock upon the door of the room containing the water-closet, and, without the knowledge or permission of the defendant, were proceeding to remove the setting or box and the attachments of the same, and of the water-closet to the *341 room in which they liad been placed. The plaintiff persisted in the work of removal in spite of the remonstrance and efforts of the defendant to prevent it. Now, the offense charged in the complaint and affidavit of the defendant, and upon which the warrant of arrest was issued and the plaintiff was arrested is, “ that plaintiff did willfully and maliciously break the water-closet in the stable,” etc. This offense is defined and the punishment therefor prescribed in section 640, subdivision 3 of the Penal Code. It consists in the willful severance from the freehold-of another anything attached thereto. And the term “ willful ” was defined in subdivision 1, section 7.18, as importing a purpose or willingness to commit the act to which it refers, and does not require any specific intent to violate law, to injure another or to acquire any advantage. “ Maliciously ” imports an evil intent or wish, or design to vex or annoy another person, or injure another person. (Snbd. 4, § 718.) But it seems malice is not an element of the offense defined in section 640, subdivision 3 (supra), and the insertion of the word “ maliciously ” into the-complaint was surplusage and unessential. While I entirely concur with my brother Haight that section 640, subdivision 3 of the Penal Code does not apply to a person who severs, with the consent of the owner, or who has a legal right to sever, it seems to me, with all deference to his views, that his reasoning from such a premise is not applicable to the undisputed facts in this case. While it is true that the definitions “willful” and “ willfully,” as contained in section 718, were left out by the amendment of that section by chapter 384 of the Laws of 1882, their omission does not change the meaning of those terms, but leaves the meaning to be ascertained and determined in the light of the decisions of the courts and the text writers upon that subject. The definitions as contained in section 718, Penal Code and left out by the amendment of 1882, especially as that definition was not changed in any respect, will, at least, be entitled to respectful consideration as expressive of the meaning given those words by the codifiers and the legislature.- *342 Now, if we turn to 2 Revised Statutes (marg. p. 693, § 15, subd. 3) we find that this offense was defined in the same terms as in section 640, subdivision 3 of the Penal Code, which is said to be a re-enactment or substitute for that provision of 2 Revised Statutes (§ 15, subd. 3, m. p. 693). The words “ malicious ” and “ willful ” as used in the provisions of the Revised Statutes (supm) and the Penal Code, have not the same or equivalent meaning; for the word “ willful ” is employed in some of the provisions defining misdemeanors, called “ willful trespass; ” the word “ malicious ” in defining others; and the word “ unlawful ” in defining still others. The language of the decisions of courts and text writers upon criminal law make a marked distinction in the meaning of • the words “ willful ” and “ malicious ” and that difference I think is in harmony with the definitions of those as given in section 718, Penal Code. Bishop, in his work upon Criminal Law, says: “ A Massachusetts case decides that the word ‘ maliciously’ in the statute against malicious mischief is not sufficiently defined as ‘ the willfully doing any act prohibited hy and for which the defendant has no lawful excuse,’ but its means more.” (Commowwealth v. Snelling, 15 Pick. 337.) The same author says: “ The words ‘ willful ’ and ‘ malicious ’ cover together a broader meaning than the word £ willful ’ alone. (§ 429), £ Willfully ’ sometimes means little more than plain ‘intentionally’ or ‘ designedly.’ ” (§ 428.) Colt, J. in Commonwealth v. William's (110 Mass. 401), in discussing the difference in the meaning of “willful” and “malicious” says: “ The injury must not only be willful, that is, intentional cmd hy design, as distinguished from that which is thoughtless or accidental, but it must, in addition be malicious in the sense above given, that is, an act or injury done, either out of a spirit of wanton cruelty or black or diabolical revenge.” Willfulness is implied in maliciousness, but maliciousness is. not implied in willfulness. “ To make ‘ willful ’ imply both a wrong and malice is to give to it a force and effect beyond what it will bear or what can be maintained, *343 either in common acceptance or its legal import.” (Commonwealth v. Kneeland, 20 Pick. 245.) It seems to me very clear that maliciousness is not an element in the offense defined in subdivision 3 of section 640, Penal Code. It only requires, to constitute that offense, that the act should be done willfully, that is, intentionally and with design. Probable cause, which will justify a dismissal of the accusation is defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offense with which he is charged. (Foshay v. Ferguson, 2 Denio, 617; Carl v. Ayers, 53 N. Y. 14-17.) It seems to me, beyond question, that the evidence established not only that the defendant was within the protection of this rule, and, further, that the plaintiff was guilty of the charge. In other words, that the evidence upon the part of the plaintiff showed not the want of the probable cause required to maintain this action, but the existence of a real cause, sufficient, upon a trial for the offense, while unexplained, to convict the plaintiff of the offense with the commission of which the defendant had charged him before the magistrate, and sufficient to constitute a reasonable ground of suspicion, supported by circumstances, and sufficient to warrant a cautious man in the belief that the offense has been committed, etc. This disposes of the main and the only question in the case which the appellant’s counsel has seen fit to discuss in his able brief. There were one or two exceptions taken by plaintiff upon the trial which are not noticed by appellant’s counsel, and which I think do not require to be noticed by this court. I think the judgment should be affirmed, with costs.