Ellis v. Simonds

Morton, J. The plaintiff was bound to establish three things: first, that he had been acquitted of the charge; secondly, want of probable cause on the part of the defendant; and thirdly, malice on the part of the defendant. Stone v. Crocker, 24 Pick. 81. Bacon v. Towne, 4 Cush. 217. Good v. French, 115 Mass. 201. Lister v. Perryman, L. R. 4 H. L. 521. These were to be shown affirmatively by him, as the court [326] instructed the jury. As there was no real controversy about the fact of acquittal, the main issues related to probable cause and to malice. In regard to probable cause the court, in effect, instructed the jury that if the defendant acted in instituting the prosecution with such care and prudence as a reasonable and ordinarily prudent person would have acted under the circumstances, then they should find that there was probable cause, and that that would end the case. We think that this was correct. If the prosecutor acts as a reasonable and discreet person would have acted under the circumstances, then it must follow that there is probable cause for the prosecution, or, in other words, ground for a strong suspicion of, or an honest belief in, the guilt of the accused. If there was probable cause, then, even though the prosecution was malicious, the court was right in saying that the defendant was entitled to a verdict. Stone v. Crocker, ubi supra. In regard to the question of malice, while the court instructed the jury that malice might be inferred from want of probable cause, it did not instruct them that want of probable cause could not be inferred from malice. But the jury were told what would constitute malice and what would constitute probable cause, and what not, and it is to be presumed that they followed the instructions thus given, instead of drawing inferences about which nothing had been said. We do not understand the instructions to mean that malice was to be inferred from a want of care and caution, but that the jury might consider whether the failure to make such inquiries, as a reasonably prudent person might have made, was or was not due to a malicious purpose on the part of the defendant. This they properly were allowed to do. The defendant presented numerous requests for instructions, twelve in all. None of them were given in the form requested, and the court was not obliged to give them in that form if it gave them in substance, so far as applicable to the questions at issue. Hudson v. Marlborough, 154 Mass. 218. Norwood v. Somerville, 159 Mass. 105. Without considering the requests in detail, we deem it enough to say that we think that the instructions which were given were sufficient. We do not think that the jury could have been biased or misled by anything which was said [327] by the judge by way of illustrating or defining what was or was not probable cause or malice. He expressly told them that it was for them to say how the questions which he suggested should be answered, and that they were not to infer from the manner in which the questions had been stated that one answer or another was to be given. Exceptions overruled.