Healey v. Aspinwall

Hammond, J. The defendant testified in substance that he received a violent blow in his side from the plaintiff’s elbow, and was knocked back upon the people behind him; and this was the assault for which the defendant initiated criminal proceedings against the plaintiff. At the trial of the present case the evidence as to whether the plaintiff did thus strike the defendant, or indeed whether there was any collision whatever between them, was conflicting, and without going into details it is sufficient to say that it would have warranted a finding either way on that matter. If there was no assault or collision, that fact in connection with the other evidence would have justified a jury in finding that the defendant knew it, and hence that he prosecuted the plaintiff for an assault which he 456 knew bad not been committed. Still further, the jury might have found that the statements made by the defendant to his counsel and to the magistrate who granted the warrant were not true and were known by him not to be true. While upon the evidence, if the case had been submitted to the jury, a verdict for the defendant might reasonably have been expected as the righteous outcome, still in this conflict of evidence it was the province of the jury and not of the court to find where the truth lay. We' are of opinion that the questions whether an assault was committed, or, if not committed, whether the defendant had probable cause to think that it had been, whether the defendant made a fair and full disclosure to his advisers, and whether after receiving the advice he acted in good faith believing that the crime had been committed or that there was probable cause for thinking it had, were all for the jury. And this is so, notwithstanding the fact that the burden of showing malice and want of probable cause was upon the plaintiff. Exceptions sustained.