Cheever v. Sweet

C. Allen, J. If it be assumed, in favor of the plaintiff, that the defendants might properly be found upon the evidence to have instituted the prosecution against him, it was further incumbent on him to prove affirmatively that it was instituted maliciously and without probable cause; and it was for the court to determine' whether there was sufficient evidence to sustain this burden. Donnelly v. Daggett, 145 Mass. 314. That is to say, it was incumbent on the plaintiff to show affirmatively that the defendants had no reasonable ground to believe him guilty. If it be further assumed, as a fact in the case, that the defendants themselves were innocent of all complicity in the supposed crime, and that there had been a criminal breaking and entering of the premises of the Healey Brothers, and a larceny therefrom, and a criminal setting fire to the building by some person other than themselves, the evidence was not sufficient to show affirmatively that the defendants had no reasonable ground to believe the plaintiff guilty. The evidence disclosed many circumstances pointing to him. The plaintiff had formerly been a partner of the Healey Brothers, and had left them, and was doing business in competition with them; he was well acquainted with the premises; his general way of life would rather invite than repel suspicion; he lived near by, and was present at the fire ; the suspicion of other persons was immediately directed towards him ; to the detective employed to investigate the case he assumed to be a criminal, and told him that he had stolen property, and arranged with him about disposing of it in Boston; several bags of jewelry, like that which was in the shop of the Healey Brothers, were found among the bushes on the border of a pond near by, and the place was watched, and the plaintiff was seen to go there under suspicious circumstances; he also proposed to the detective to break into [188] two other shops where similar jewelry was made; the detective, and the local officer, Dunham, both declared their belief that he was guilty, and the evidence which was laid before the district attorney was also sufficient to lead him and the grand jury to the opinion that it was a proper case for a prosecution. Taking these various circumstánces together, and assuming that the defendants were not themselves in any manner privy to the commission of the various acts charged upon the plaintiff, there was sufficient ground for suspecting the plaintiff, and for instituting a prosecution against him. But the plaintiff, in order to meet this aspect of the case, contends that the defendants did not have an honest belief that he was guilty,* and that one or more of the defendants themselves were parties or privy to the acts charged upon the plaintiff, and therefore knew that the plaintiff was innocent. The circumstances relied upon in support of this charge, as against three of the defendants, are that the safe containing the jewelry was not broken into, but was opened by some one who had a key, and knew the combination; that it was found locked immediately after the fire; that the combination was known only to the Healey Brothers and to their clerk; and that when the jewelry was found on the border of the pond, the fact of its discovery was kept secret until after a settlement with the insurers. The evidence was^ not clear that the combination to unlock the safe was known only to the Healey Brothers and to their clerk, nor did it appear whether it would be easy or difficult to open the safe; and an explanation was given of the concealment of the finding of the jewelry, namely, that the detective advised it. These circumstances were not sufficient to warrant a finding that these three defendants were parties or privy to the acts charged upon the plaintiff, and thus to show that they did not have an honest belief that he was guilty. The plaintiff further called a witness, Paginton, whose testimony, if believed, had a tendency, when taken in connection with the other evidence, to incriminate the other defendant, John T. Healey. This testimony was to the effect, that on the morning after the fire this defendant said, “We’ve been robbed,” and then said, “We have not been robbed ”; that he asked Paginton to conceal some dies, worth from two to three hundred dollars, [189] until,after the insurance men had been there; that the dies were accordingly concealed by Paginton ; that three or four-days afterward this defendant told him that they had made three thousand dollars by the fire, and that a detective had worked Cheever, and if there was money to put him in jail he would go there; that he wished he had the detective to work one Skinner, who would have been an easier man to work; and that just before the trial of Cheever on the indictment this defendant twice offered the witness twenty-five dollars to go away, and not to testify for Cheever. It is not for us to consider to what extent the jury might have discredited this witness, unless palpably and clearly his testimony was entitled to no credit. As to the defendant John T. Healey, it seems to us that the plaintiff was entitled to go to the jury upon the question of probable cause. If Healey was innocent, then he would stand with the rest; if he was guilty, of course it could not be said that he had an honest and reasonable belief that the plaintiff was guilty. It was also necessary for the plaintiff to show that this defendant took part in the institution of the prosecution against the plaintiff. If it be assumed that he knew that the plaintiff was innocent, his acts were sufficient to warrant a jury in holding him responsible for the prosecution, because in that case it could not be said that he honestly and in good faith laid the facts which were within his knowledge or possession before the public prosecutor, with a view to enable him to judge fairly of their weight. The result is, that as to the other three defendants the exceptions are overruled, but as to the defendant John T. Healey they are sustained. Exceptions sustained.