Laird v. Taylor

By the Court, Mullin, J. To entitle the plaintiff to recover in this action, he must establish four propositions, viz.: 1st. That he was prosecuted by the defendant. 2d. That such prosecution had been terminated in his (the plaintiff’s) favor. 3d. That it was malicious; and 4th. That it was without probable cause. It is not denied but he established the first two of these propositions. And I think the other two are equally well established. 1st. Was malice proved ? It was shown that there was a law suit pending in the county court of Onondaga county, in which the parties to this action were witnesses. This cause was tried, at Syracuse, in March, 1866. The witnesses do not agree whether the trial was completed the same day it began. But whether it was or not, is not very material as it is established, beyond all doubt, that the plaintiff and defendant remained at Syracuse over one night, and returned home the following day. ' The defendant knew the plaintiff stayed at Syracuse over night, and it was during that night the property alleged to be stolen by the plaintiff was lost. When the defendant first called on the justice for process to obtain possession of the stolen property, he declared himself satisfied that it was not stolen by the plaintiff; and the reason assigned for so thinking was [143] the fact that the plaintiff stayed that night at Syracuse. On the same day of the application for process, and after this declaration of the defendant’s belief in the innocence of the plaintiff, he calls again on the justice, and then swears to his belief that the plaintiff stole his property. This evidence made it necessary for the defendant to disclose whatever information he may have acquired intermediate the first and second applications for process, which induced him to change his opinion. But no additional facts tending to show the plaintiff’s guilt were discovered. The only new light he had obtained was the advice of counsel having no personal knowledge in regard to the matter, and whose advice was given on the facts stated to him by the defendant. Aside from the advice of counsel, there could be no room for doubt but that the charge of larceny was malicious. It was made with full knowledge that the plaintiff not only was not, but so far as the defendant then knew, could not have been, guilty of taking the property. Advice of counsel will not, of itself, protect a client from the imputation of malice. To enable it to have that effect, the question must be one of law, or some legal principle must be involved, in order to a proper decision of which the law applicable to the question must be ascertained. In such a case, if the client acts in good faith, upon the advice of counsel learned in the law, he cannot be charged with malice. The question for the defendant t£ determine was, whether the plaintiff took the property. In the absence of all evidence as to the time and manner of taking, possession of stolen property is presumptive evidence that the person in possession stole it. But when it is known that the one in possession could not have stolen it, then all benefit from the presumption is gone: If the person making the charge of larceny under such circumstances desires to be relieved from the imputation of [144] malice, he must go to the jury. The question is for them, and not for the court. If they believe that the question was so far one of law that it was proper to submit it to counsel, and that the. defendant acted in good faith, on the advice given to him, then it is their province to hold malice not proved. The court could not pass on these questions. [Onondaga General Term, April 7, 1868. The question of malice was therefore properly submitted to the jury. 2d. Was there a want of probable cause proved ? The probable cause, the want of which is required to be proved, in this class of actions, relates to the cause for instituting the prosecution—probable cause for believing the accused guilty of the offence imputed to him. The defendant knew that it was physically impossible for the plaintiff to have stolen his property at the time it was lost. While it was possible for the plaintiff to have gone from Syracuse to Memphis and there taken the property, yet the defendant did not believe that he left Syracuse. He never made any such suggestion, at any stage of the proceedings. This fact overcame the presumption of guilt arising from possession, and left no shadow of ground for charging the plaintiff with the taking of the property. The subsequent conduct of the plaintiff, in reference to the property, adds nothing to the presumption of guilt, but does add weight to the presumption of innocence. The case was properly submitted to the jury, and the judgment should be affirmed. Foster, Mullin and Morgan, Justices.]