Bacon v. Towne

Shaw, C. J. This is an action on the case against three defendants for a malicious prosecution, in making a complaint before a magistrate and procuring an indictment against the plaintiff, for unlawfully burning the factory in his occupation, for the purpose of defrauding the insurers upon it. It appears that the defendants laid a complaint before the magistrate, charging the plaintiff with the wilful burning of his factory to defraud the insurers, and also with burning a corn mill of the defendants. The plaintiff was bound over, and subsequently was indicted for those offences; but in consequence of a defect in the indictment, the public prosecutor entered a nolle prosequi thereon, and forthwith, another indictment was laid before the grand jury, for that part of the offence, which consisted in burning the factory, omitting the mill, and was found upon the evidence already given; upon which last indictment the plaintiff was tried and acquitted, whereupon this action for malicious prosecution was brought, and the plaintiff obtained a verdict. Sundry exceptions were taken at the time, by the defendants, which now come before us on a bill of exceptions. The court below ruled, that the plaintiff could not recover on the first and fourth counts, because, as we understand, those counts averred a discharge from the indictment by a nolle prosequi, which was not sufficient to maintain the action. This decision, being in favor of the defendants, does not arise on their bill of exceptions; but as the question may arise, if the cause should be tried again, it is proper to say, that we consider the decision right. It must appear, before this action will lie, that the defendant in the indictment has been fully acquitted; but a nolle prosequi is no discharge of the crime, and no bar to a new indictment, even if it precludes the government from suing out new process, requiring the party to answer to the same indictment, which may be more doubtful. Goddard v. Smith, 6 Mod. 262; S. C. 1 Salk. 21; S. C. 2 Salk. 456 ; opinion of Buller, J., in Morgan v Hughes, 2 T. R. 231; Croke v. Dowling Bull N. P. 14. — 236 — 1. The first exception taken by the defendants is, that the judgment of the magistrate, binding the plaintiff over to answer, was conclusive evidence of probable cause. This is certainly not within the authority of the case of Whitney v. Peckham, 15 Mass. 243, because the magistrate, in the present case, had no legal jurisdiction to hear and decide finally, but only to bind over, which is a mere preliminary step to further proceedings. But the authority of that case has been somewhat questioned in Burt v. Place, 4 Wend. 591. If regarded as evidence of probable cause, we think it is prima facie only, and not conclusive. 2. The. defendants excepted to the admission of the record and proceedings before the magistrate, on the ground, that as the first indictment to which they led was withdrawn by a nolle prosequi, these proceedings became immaterial. But the court are of opinion that these proceedings were admissible. They were instituted by the defendants as complainants, and they led to the prosecution by indictment. The second indictment was in the nature of an amendment or supplement to the first; the original complaint, and binding over, was the efficient cause of the second indictment; otherwise the defendants had no connection with the actual prosecution, on which the plaintiff was acquitted by verdict of a jury; and upon these grounds, it should be decided, that this action cannot be maintained. This evidence was competent, not because the prosecution before the magistrate is itself the malicious prosecution complained of, but to connect the subsequent proceedings in the court of common pleas with the acts of the defendants. 3. Evidence was offered to control or impeach the finding of the magistrate, as any evidence of probable cause, on the ground, that he had acted unfairly and improperly in the examination. This, though objected to by the defendants, was admitted. No authority was offered in support of this decision, and the court are of opinion, that the evidence could not properly be admitted. It is not competent, we think, with a view to avoid the effect or impair the weight of a judgment, rendered by a court or magistrate, acting judicially within — 237 — his jurisdiction, to prove partiality or unfairness, in the particular case. A party actually convicted by a jury might, upon similar ground, contend that such conviction was obtained by bribery or other misconduct; that the party ought to have been acquitted upon the law and evidence; and that such conviction ought not to stand as evidence of guilt, or even of probable cause. Records of judicial proceedings have a certain intrinsic value and effect, ascertained by general rules of law, to which it is important to adhere. Sayles v. Briggs, 4 Met. 421. 4. It was insisted, on the part of the defendants, that it was the duty of the plaintiff to give in evidence all the evidence given before the magistrate, on the part of the prosecution, to the end that the court might determine whether there was or was not probable cause; but the presiding judge ruled that it was not necessary. We can perceive no tenable objection to this decision. The plaintiff must, undoubtedly, prove his case, a material averment of which is, that the prosecution was commenced without reasonable or probable cause, and the proof of this, though a negative proposition, lies on the plaintiff. But no rule requires that he shall prove all that took place on the trial of the case complained of, in which the plaintiff was acquitted; a fortiori we are not aware of any such rule, in regard to a preliminary inquiry before the magistrate. Biggs v. Clay, 3 Nev. & Man. 464. 5. It was next contended by the defendants, that the second indictment, found in June, 1847, was an independent prosecution, and not founded on the complaint made before the magistrate, and therefore was one for which the defendants were in no way responsible. And it was insisted, in confirmation of this view, that such second indictment did not charge the unlawful burning of Towne’s grist mill, being the only part of the alleged offence, in which the defendants were specially interested. But the court did not sustain this view, but considered the second to be connected with the first, as effect and cause, so that the defendants might be the efficient cause of the second. — 238 — This seems to have been rather a matter of fact than of law, depending on the evidence. If one indictment was nolprossed, and another returned on the same evidence, and for a substantive part of the same charge, to avoid a formal defect, we cannot say, that the original complaint made by the defendants was not the actual cause of the latter'. 6. The next exception was, that the plaintiff had given no evidence, that the jury, on the trial of the criminal charge, had acquitted the plaintiff promptly, and without hesitation, delay or deliberation. It appears by the bill of exceptions, that no evidence was offered on this point on either side. The defendants’ counsel insisted, and they have renewed that argument here, that the plaintiff was bound to prove affirmatively that the jury did not so pause or deliberate. We see no ground, on which to sustain this exception. Suppose the fact of their pausing or not may have a bearing on the question of probable cause, as held in Smith v. McDonald, 3 Esp. R. 7, it, is not necessary and indispensable evidence; the same essential fact may be proved by other competent evidence. 7. The defendants, having opened and stated their defence, offered Mark Doolittle, esquire, the magistrate, to prove what the testimony before him was, on the part of the government, to prove probable cause, and rebut the allegation of malice; but the presiding judge ruled, that this could only be done by the same witnesses who were produced on the stand, or their depositions, except as to testimony then given by the defendants or their wives. To this rejection of evidence the defendants objected. The court are of opinion that this exception must be sustained. It was of vital importance for the defendants, in answer to any proof of want of probable cause, to prove affirmatively, that they had reasonable and probable cause for the prosecution, at the time the proceedings in it were commenced. Probable cause is such a state of facts in the mind of the — 239 — prosecutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person arrested is guilty. The facts testified to on the examination may have been very influential in raising such suspicion or belief, and are therefore competent evidence to show the ground he had of cause to believe, whether they were true or not. They are therefore facts material to the issue, to be proved by any witnesses who can testify to them, as well as by those who testified at the examination. Those witnesses may be dead, absent or insane ; they, may have forgotten them, or refuse to testify to them, or even deny them; it is not the less true that they did so testify, and if the testimony was of a character to induce a belief or strong suspicion, in the mind of a reasonable man, of the guilt of the accused of the crime charged, they had a direct bearing on the issue of probable cause or not, in the action for malicious prosecution. 2 Greenl. Ev. § 454; French v Smith, 4 Verm, 363. Probable cause does not depend on the actual state of the case, in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution. James v. Phelps, 11 Ad. & El. 483, 489. The only case we are aware of, which seems to countenance an opposite rule, is that of Burt v. Place, 4 Wend. 591, which was a case of gross fraud and oppression under the forms of law, practised by the defendant himself, and in which there was abundant evidence of malice, groundlessness and fraudulent design, in the suits complained of as malicious. The general rule is stated in Bull. N. P. 13, 14; 2 Greenl. Ev. § 449; Steph. N. P. 2282, 2284; Wilmarth v. Mountford, 4 Wash. C. C. 79. 8. This exception was substantially the same, except that it applied to the testimony of Matthews, whose deposition was taken, but who failed to recollect what his testimony was before the magistrate. For the reason already given, the proof offered of his testimony before .the magistrate ought to have been received, because it might have operated to produce a reasonable belief of the guilt of the plaintiff; and the — 240 — knowledge that he would so testify might have been one of the grounds on which the defendants made their complaint before the magistrate. French v. Smith, 4 Verm. 363. Indeed, it appears by the bill of exceptions, that the defendants did know before the commencement of the prosecution, that Matthews would testify to the facts, which he did in fact testify to on the examination. 9. In order to rebut malice and show probable cause, the defendants offered one Squires as a witness, who would testify that two women, Shaw’s wife and Mary Randall, soon after the fire, and before the complaint, communicated to the witness, with a request that he would communicate to Towne, the fact, that they were present at the fire, and saw Bacon, the plaintiff, throw burning cotton into the picking-room of his factory, whereby it was burnt, and that he did so communicate the information to Towne before the complaint. The presiding judge rejected this evidence as inadmissible. We cannot perceive upon what ground this evidence was rejected. It had a direct tendency to create a belief in the minds of the defendants of the plaintiff’s actual guilt of the of-fence charged. The reason assigned by one of the defendants’ counsel is, that it was hearsay; but we think, in the ordinary transactions of life, men do not hesitate to act on information until they put their informants upon oath, if, indeed, such oath would not be extrajudicial and unlawful. The reason assigned by the other counsel is, that these women testified to the same facts before the magistrate. Without adverting to the fact that proof of such testimony was rejected, it was important for the defendants to show, that this information was communicated to them before the complaint, and therefore that they had reasonable expectation of being able to prove it. We think this evidence ought to have been received and laid before the jury. Broad v. Ham, 5 Bing. N. C. 722. 10. We are inclined to think that evidence of the general bad reputation of the plaintiff should have been admitted, to rebut the proof of want of probable cause, a s well as in mitigation of damages. The proof of want of probable — 241 — cause lies on the plaintiff. The same facts, which would raise a strong suspicion in the mind of a cautious and reasonable man, against a person of notoriously bad character for honesty and integrity, would make a slighter impression if they tended to throw a charge of guilt upon a man of good reputation. Rodriguez v. Tadmire, 2 Esp. R. 721; Wood v. United States, 16 Pet. 342, 366; 2 Greenl. Ev. § 458. But see Newsam v. Carr, 2 Stark. R. 69. 11. The exception relating to the defendants’ offer to prove what was testified tc in the presence and hearing of Towne and Shaw, at the examination before Doolittle, not as evidence given in a court of justice, but as statements or declarations made in the magistrate’s presence by third persons, as furnishing probable cause for a prosecution, was not argued. 12. The court are of opinion, that under our present forms of proceeding, where special pleading is not admissible, a defendant may, to rebut malice, and prove probable cause, show facts tending to prove the actual guilt of the plaintiff of the criminal .charge imputed to him, though the defendant is not prepared with evidence to show that such facts were within his lcnowledge-at the time of the complaint. If they were then true, and existed, they might have been known to the defendant, though he cannot now prove how he knew them, and though they were not so within his personal knowledge, that he could testify to them on the trial of the indictment. But if it were doubtful, whether they could be given in evidence for these purposes, the court are of opinion that they were competent in mitigation of damages, and ought to have been received in evidence. Bell v. Pearcy, 5 Ired. 83. 13. The exception relating to proof by the defendants of their own conduct, in order to disprove malice and mitigate the damages, the same facts having been already in evidence on the part of the plaintiff, to show the defendants motive in instituting the prosecution, is not material to be considered. 14. The court are of opinion, that the judge, at the trial, should have somewhat more distinctly directed the jury, what — 242 — leading facts, or classes of facts, if proved to the satisfaction of the jury, would constitute reasonable and probable cause for the prosecution, and what would not, leaving the facts and the inferences to be drawn from them to be found by the jury. The judge declined so to instruct the jury, but instructed them, that the evidence might be considered as tending to establish these propositions or facts: — 1. An intent or motive in the plaintiff to commit the crime; 2. Guilty conduct, or acts, or knowledge of the plaintiff; 3. That the fire was the act of an incendiary; and that if they found any two of these propositions proved, they would constitute probable cause, but that neither alone would be sufficient. We are of opinion that this direction was not correct in matter of law. It is very questionable, whether, if the plaintiff had a motive to burn his factory, and it was true that the factory was wilfully burnt, it would be sufficient to raise a strong suspicion against the plaintiff, without some further evidence to fix the charge on him. But further, guilty conduct, acts and knowledge, alone, if they were of such a nature as to make them bear upon this particular charge of burning his factory, such as manifestations of conscious guilt, obscure and equivocal admissions, futile attempts to attribute the fire to other causes, and the like, might be alone sufficient to raise that belief or suspicion, which would amount to probable cause. But guilty knowledge, acts and conduct, if they did not lead to a belief of the plaintiff’s guilt of this particular charge, would not alone, or with either of the other hypothetical cases, amount to proof of probable cause. In order to enable the jury to pass upon the facts in question, and the court to decide whether in law, if proved, they would constitute probable cause, the evidence tending to prove the prominent facts of the particular case should have been distinctly laid before the jury, with a more specific direction as to the law. Panton v. Williams, 2 Ad. & El. N. S. 169. Verdict set aside, and new trial ordeied.