Gilliford v. Windel

Mr. Justice Gordon delivered the opinion of the court, January 5th, 1885. , As it is the duty of every citizen- to aid in enforcing the criminal laws of the state against those by whom they are wilfully disobeyed, so is it the business of our courts of justice' to see that the person thus undertaking to vindicate the law shall not suffer in consequence of such an attempt, even' though it may have proved abortive. Hence it is, that it has ever been held that an action for malicious prosecution can be maintained only where the plaintiff can make it appear, (1) that the defendant in his attempted prosecution had no probable cause upon which to found it, and (2) that he was actuated by malice. If the defendant is able to show probable cause, that is sufficient for his protection, and, in that case, his motive for the -prosecution is not to be considered. If there be no such cause shown, then the question is one of malice, and if the proofs exhibit an absence of this essential' element of the plaintiff’s case, the action cannot be legally sustained : Dietz v. Langfitt, 13 P. F. S. 234; Bernar v. Dunlap, 13 Nor. 329. Whilst a want of probable cause is prima' facie evidence of malice it is by no means conclusive, since,' where it appears that there is a reasonable ground for the be-’ lief of guilt, without regard to-what induced that belief, if. ought to be regarded as a justification of the defendant’s action, for, as we held in Smith v. Ege, 2 P. F. S. 419, and Seibert v. Price, 5 W. & S. 438, the question turns not upon the actual state of the tease, but upon the honest and reasonable [146] belief of the party prosecuting. So where it appears that the defendant acted merely through mistake, or where the prosecution resulted from the mistake of the justice of the peace before whom the information was made, the action cannot be maintained: 2 Esp., N. P. 122; 2 Stark Ev., vol. 2, 688. When we come to apply the legal principles here stated to the facts of the cases we have before us, we at once discover that it was a mistake in the court below to allow a verdict to be given against the defendant. The plaintiffs’ evidence certainly exhibits probable, if not actual, cause for a prosecution. Edward Windel, one of the plaintiffs, in his testimony admits not only that he invaded the premises of the defendant, destroyed some of the potash by burning, but that he carried some of it away with him, thus proving-not only malicious mischief but also theft. He likewise implicates his brother and some other boys as engaged in the same transaction. So'Maloney swears that Michael Windel was at least part of the time at the fire when the boys were burning the defendant’s potash. We think there was quite enough in this testimony to justify Gilliford in what he did, or at least to rebut the presumption of malice on his part in endeavoring'to prevent, by a prosecution, the destruction of his property by a set of idle and malicious • boys. Then, on part of the defendant, there is the testimony of Alderman Callen, Edward Fritchley, and Albert Shore, by which it is proved that the information was supported by evidence direct and positive that the plaintiffs had been guilty of entering the bromine factory, and ear-rying away and destroying the potash. This, again, in the language of the authorities, was such proof of probable cause for the prosecution as ought to have rebutted any presumption of malice which otherwise might have arisen. Neither do we see how the declaration of the defendant, that he had offered to drop the prosecution for malicious mischief against the plaintiffs if their parents would pay the costs, could properly be admitted to show malice. It is trué, as was held in the case óf Prough v. Entriken, 1 Jones 81, where a criminal charge is proved to have been instituted for the sole purpose of extorting money'- from another, the law will imply malice as well as the want of probable cause. But there was¡ no pretence of any such thing in the cases before.us; there was merely an offer to compromise.on the payment of costs a proposition proper and legal in itself, and entirely within the power of the, parties : Sec. 9, Crim. Procedure Act, 31st. March, 1860. Again, in answer to the defendant’s 7th point: “As to the Edward Windel case, he having admitted the theft, and there being no countervailing testimony, the jury will find for the [147] defendant,” tbe court below said, “ Affirmed as to the charge of larceny; refused as to tbe charge of malicious mischief.” This was error; the point should have been affirmed. • As we have seen, the defendant' could not be charged with malice from a mere mistake in the form of the procedure. The proof is that a crime was committed, and of such a character as warranted a prosecution, and we cannot see how the fact that an information was lodged for malicious mischief when the facts involved the higher offence of larceny, could be used as evidence of malice. Neither can we understand why this evidence is not sufficient for the purpose, at least, of establishing probable cause for the prosecution of both offences. Certainly the wanton destruction of part of the defendant’s property would support an information for the offence first named, whilst the taking and carrying away of another part of the same property, animo furandi, would sustain a prosecution for the latter. Thus, however we may view the ruling of the court below, it is found to be erroneous, and must, consequently, be reversed. The judgments are, therefore, now reversed.