Brown v. Willoughby

Thatcher, C. J. Judgment was entered on the twentieth day of October, A. D. 1877. April sixteenth, A. D. 1878, the defendant filed his notice of appeal from the final judgment. No appeal was taken from the order of the court denying the motion for a new trial. In the latter case notice of appeal must be given within sixty days after the lower court made the order. Code, Sec. 338. Sec. 346 of the Code provides, “ Upon an appeal from a judgment the court may x-eview any intermediate order involving the mex’its and necessarily affecting the judgment.” An “intermediate order,” within the meaning of this section, is an order from which no appeal can be taken under the Code, and which, therefore, bxit for this provision, could not be reviewed : It applies exclusively to non-appealable orders. As defendant failed to prosecute an 'appeal from the order denying the motion for a new trial, we are not at liberty to examine the evidence with the view to determine whether it is sufficient to support the judgment. Clark v. Gridley, 49 California, 108; Rycraft v. Rycraft, 42 California, 444; Reed v. Bernal, 40 California, 628 (overruling Treadwell v. Davis, 34 California, 601); Rush v. Casey, 39 California, 339; Hihn v. Peck, 30 California, 286; Ingraham v. Gildermester, 2 California, 483; Deputy v. Stapleford, 19 California, 305. Although we may not review the evidence, any error of law in admitting or excluding testimony may be reviewed on appeal from the judgment when the ruling is made a part of the record by a bill of exceptions, or by a statement on appeal. Carpenter v. Williamson, 25 California, 167. The appellant assigns for error the giving of the following instruction: “The Court further instructs the-j my that by — 9 — tlie expression ‘ without reasonable or probable cause,’ is meant the want of the knowledge of the existence of such facts and circumstances on the fart of the defendant as would lead a prudent and careful person to honestly believe that the plaintiff was guilty of the crime imputed to him in the said indictment,” etc. This instruction assumes that Willoughby had been charged by the indictment with the commission of one offense. Other instructions assume that each of the five counts charged -a separate and distinct crime, and the jury is elsewhere told substantially that if Brown prosecuted or instigated the prosecution of either one of the five counts, maliciously and without probable cause as to such count, he is guilty of malicious prosecution. Greenleaf on Evidence (Yol. 2, Sec. 449) says: “If groundless charges are maliciously and without probable cause, coupled with others which are well founded, they are not on that account the less injurious, and therefore constitute a valid cause of action.” The court should have been more specific on this point. It is not conceived that if the charges made are the same, all relating to the same transaction, the main difference being in the allegation of ownership of the property, a difference to be attributed to the caution of the pleader who prepared the indictment, that the rule laid down by Greenleaf would apply. It is common practice among prosecuting attorneys, when there is any doubt as to where the ownership should be laid, to lay it in several persons, in order to prevent the failure of justice at the trial. The principal objection urged to this instruction, however, is that it asserts the doctrine that unless the facts and circumstances upon which the belief of guilt is honestly entertained actually exist, and that the prosecutor have knowledge of their existence, there could have been no probable cause for the prosecution. The essential ground of this action, without which it can never be maintained, is want of jorobable cause. — 10 — However malicious may be the motive of the prosecutor, if there was probable cause for the prosecution, in the eye of the law, he is guiltless. It therefore becomes important to consider what is meant by “ want of probable cause.” If upon this point the charge was erroneous, the verdict ought not to stand. We think the instruction is entirely too broad. Actual knowledge that the crime was committed is not necessary, nor is it essential that the prosecutor shall Imow the facts and circumstances upon which he predicates his belief. He may act upon credible information or deceptive appearance of guilt if he acts in good faith. “ If the defendant could show that he had probable cause for his conduct— that is, that from such, information as would induce a reasonable and prudent man to believe the plaintiff guilty of crime, he instituted the prosecution, he is not liable, whatever may have been his own personal malice for sotting it on foot.” Barron v. Mason, 31 Vermont 198. “ Probable cause in such a state of facts in the mind of the froseeutor 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.” Bacon v. Towne et al. 4 Cush. 239. “ It is not necessary that the crime of larceny should be fixed upon the plainti^; if by his folly or his fraud he exposed himself to a well grounded suspicion that he was guilty of that offense, the prosecution had at least probable cause for its basis, and this is sufficient to defeat the present action.” Wilmarth v. Montford, 4 Washington C. C. R. 84. In Harpham et al. v. Whitney, 77 Ill. 39, this question was very fully considered. The jury in that case had been instructed “ that a party charging another with the commission of a crime, must act upon facts or circumstances within his knowledge sufficient to induce the belief in the mind of a cautious man, of the guilt of the person charged with crime.” Commenting upon this instruction the court says, “ A citizen-having reason to believe or entertain a strong suspicion — 11 — wpon information or popular report that a crime has been committed, must be permitted to appear and direct the attention of the grand jury towards its investigation, without exposure to the peril—in case of failure of conviction, or it turning out that the information upon which he acted was not founded in fact—of being held liable for malicious prosecution, and of being mulcted in ruinous damages. The criminal law-does not enforce itself; it requires the agency of some informant to put it in execution. There would be little of efficiency of execution of much of our criminal law, as for instance, the laws for the suppression of gambling, the unlawful sale of intoxicating liquors, the keeping of houses of ill-fame, and the like, if those only might move with impunity in the matter of their enforcement, who had actual cognizance of the infraction of the law.” In this case, Brown in his defense does not pretend to have had actual cognizance of the facts and circumstances which led to the criminal prosecution. He acted upon information alone. If in any given case, where a party sued for malicious prosecution, defends by offering evidence to show that he had actual cognizance of the facts upon which he predicated the belief that a crime had been committed, the definition of “ want of probable cause,” contained in the instruction under consideration might be appropriately given, it is erroneous in a case like the present, where the defendant attempts to justify his action upon a different ground. That elsewhere in the instructions the doctrine is recognized that “ probable cause ” does not depend upon the actual state of the case, but upon the state of the case as it lay in the mind of the prosecutor, does not enable us to say that the jury was not misled by the erroneous definition. In this action, if the want of probable cause be shown, the proof of actual malice is also required to sustain it. Here the law allows no presumption of malice, as it does in an action of slander. Actual malice may be proved by the acts and declarations of the party; or it may be inferred by the jury from the — 12 — want of probable cause. The charge must be shown to be willfully false. Levy v. Braunan, 39 California, 489; Humphries v. Parker, 52 Me. 507. Where the evidence shows that accused was wholly innocent of the charge, and that there was no probable cause for the accusation, an action for malicious prosecution cannot be maintained in the absence of malice, which may be traceable to a spirit of.hatred, revenge or other sinister or improper motive, denoting bad faith on part of the prosecutor. Stone v. Crocker, 24 Pick. 87; 3 Phillips Ev. 572. Whatever tends to show evil intent malus animus on part of the prosecutor in instigating the indictment, is properly admissible in evidence. The intent with which the prosecution was instigated, is the controlling inquiry where there is want of probable cause. Ilenry 0. Clark testified at the trial of Willoughby under the indictment. At the time of the trial in the action for malicious prosecution, Clark was beyond the jurisdiction of the crurt. Mr. Dennison, the official stenographic reporter of the court, who had taken down the evidence at the trial in the criminal case, was put upon the stand in the civil cause, and allowed to testily as to the evidence given by Clai’k. He read from his official- notes. It is objected that the court erred in allowing, this to be done. The objection was, “that the plaintiff might have taken the deposition of Clark or produced him.” The objection is not well taken. Por the purpose of show ng want of probable cause, Dennison was as competent to testify as Clark,, and indeed if Clark had been in the court room it'is highly probable that his memory as to the evidence given at the trial would not have been so accurate as the official report of it. Goodrich v. Warner, 21 Conn. 442; Bacon v. Towne et al. 4 Cush. 238; 1 Hilliard on Torts, p. 460. The affidavit in attachment, the writ, judgment, indemnity bond, the special execution and the return thereof, in the suit of Brown v. Mines & Elliott, were properly admitted in evidence, as tending to prove want of probable cause. Por error in the instruction upon the question of want of — 13 — probable cause as applicable to this case, the judgment will be reversed and cause remanded. Reversed.