Straus v. Young

Grason, J., delivered the opinion of the Court. This action was brought for an alleged malicious prosecution, and at the trial below the plaintiff offered three prayers, the first and second of which were granted and the third conceded, and the defendant six, of which the first and fourth were rejected, the second was conceded by the plaintiff, and the third, fifth and sixth were granted, and the defendant excepted to the granting of the plaintiff’s prayers, and to the rejection of the first and fourth of his own, and the judgment being against him he took this appeal. The first prayer asked an instruction that if the. jury should find that the appellant preferred under oath a charge of larceny against the appellee before a justice of the peace, and caused him to issue his warrant for her arrest, by virtue of which she was arrested and brought before him, and after a full investigation of the preferred charge she was acquitted and discharged, that such acquittal and discharge were evidence with the other evidence in the cause, of the want of probable cause for such charge, and that it was competent for the jury to infer malice from the want of probable cause, as the same was defined in the sixth prayer of the appellant, which had been granted by the Court. We think that the prayer states correctly the propositions of law. It is true that it is incumbent upon the plaintiff to allege and prove in an action for malicious prosecution, that the prosecution was [255] botli malicious and without probable causo; but the discharge of the plaintiff by the examining magistrate, is prima facie evidence of the want of probable cause, sufficient to throw upon the defendant the burden of proving the contrary. 2 Greenl. Ev., sec. 455; Secor vs. Babcock, 2 Johns’ Rep., 203; Bostick vs. Rutherford, 4 Hawks, 83. It is also well settled that malice may be inferred from the want of probable cause. Turner vs. Walker, 3 G. & J., 386; 2 Greenl. Ev., sec. 453. The second prayer of the appiellee states as legal proposition that malice can be inferred from the conduct, zeal and activity of a party in conducting the prosecution of a plaintiff, and this proposition is supported by the 453d sec. of 2 Greenl. Ev., and the case of Turner vs. Walker, above referred to. Both of the above prayers were alleged to be objectionable, because there was no proof in the cause that a charge of larceny liad been preferred by the appellant against the appellee. As this objection was not specially made in the Court below, it cannot be heard in this Court in view of the Act of 1862, ch. 154, and the fourth rule of this Court. It was also argued that these prayers ought not to have been granted inasmuch as the nar. averred that the appellant had maliciously and without probable cause preferred the charge of larceny against the appellee and caused her to be arrested, &c., whereas, the proof offered at the trial below showed that the charges made against the appellee was that of embezzlement. If the appellant desired to avail himself of this variance between the allegation of the nar. and the proof, he should have done so by objecting to the evidence at the time it was offered, or by a prayer properly framed for that purpose. ISTot having done so the objection cannot be heard by this Court, since the Act of 1825, which is incorporated in the Code. See Leopard vs. Ches. & Ohio Canal Co., 1 Gill, 227; Stockton vs. Frey, 4 Gill, 422. The first prayer of the appellant assumed that there was no evidence in the case of a want of probable cause for the prosecution, when we have shown that the discharge of the [256] appellee by the examining magistrate furnished prima facie evidence of its absence. The testimony of the appellee also tended to prove it, and the prayer was therefore properly refused. The appellant’s fourth prayer'asserted as a proposition of law that the appellee was not entitled to recover, if the appellant truthfully and to the best of his knowledge stated to the justice of the peace, and without malice, what he conceived to be the cause of complaint, and that thereupon the justice expressed the opinion that the conduct stated constituted a criminal offence, and thereupon swore the appellant to said statement, and issued the warrant referred to. In the first place there was no evidence that the justice expressed the opinion that “ the conduct stated constituted a criminal offence,” and this was sufficient cause for rejecting the prayer. But it is evident, from the argument of the apjiellant’s counsel in this Court, that the intent and meaning of the prayer is, that the appellant was not liable, if he acted in the premises under the advice of the magistrate. Although, if a party makes a full and fair statement of all the facts to counsel and acts under his advice, this is admissible evidence for the purpose of showing absence of malice; yet it may be rebutted by other surrounding circumstances and the other evidence in the cause. Turner vs. Walker, 3 G. & J., 387. But we know of no case in which it has ever been held that proof, that a party had acted under the advice of a magistrate or any other party not learned in the law, was admissible for such purpose. The appellant’s fifth and sixth prayers, which were granted, gave him the benefit of the law as favorably as he was entitled to it. (Decided 18th June, 1872.) There being no error in the rulings, of the Court below, its judgment will be affirmed. ■ Judgment affirmed.