Driggs v. Burton

44 Vt. 124

• Court: Supreme Court of Vermont
• Decided: November 15, 1871
• Status: Published

Opinion

The opinion of the court was delivered by

Wheeler, J.

From the oral evidence received without objection and not contradicted, it appears that the plaintiff was in fact discharged from custody, and that the proceedings against him before Justice Hollenbeck came in fact to an end. There was no formal discharge of him by the justice, but the proceedings that were had in effect discharged him. The entry made by the justice upon his files was merely nolle prosequi by the State’s attorney ; but that entry was a mere memorandum, made by the justice, by which to write out the formal record of the proceedings at large. The full record would show the discharge of the plaintiff and the end of the proceedings. Neither the form of th.e memorandum nor the want of a full record ought to, or can, vary the effect of what was done. There are cases that hold that the entry of a nolle prosequi by a prosecuting attorney is not.a sufficient termination of an indictment to warrant a recovery for a malicious prosecution of the indictment, and that nothing short of an acquittal upon the merits would be sufficient for that purpose. Where the ent'y is the mere act of the prosecuting attorney and no action of the court is had upon it, the entry would not be an end of the proceedings, and for that reason would not warrant any action which could not be had before the proceedings were at an end. Upon the proceedings against the plaintiff, Justice Hol-lenbeck could neither acquit nor convict; but could only bind over or discharge. He did, in effect, discharge the plaintiff; and that was a complete termination of that prosecution, and as favorable a one as could be had for the plaintiff. Under these circumstances, to hold that the prosecution was at an end far enough to warrant an action for maliciously prosecuting it, will not really conflict with the cases alluded to. 1 Am. Lead. Cas., 222. Upon principle, it seems that the termination upon the nolle prosequi of the State’s attorney, under these circumstances, was sufficient, and no error is found in this respect.

It is urged in behalf of the defendant that the prosecution came to an end so by the consent of the plaintiff as to defeat this action. But, although the plaintiff and his counsel suggested to the State’s attorney that it was rather hard to hold the plaintiff in charge any longer, and the State’s attorney thereupon told them he should enter a nolle prosequi the next morning, — and did so — still it does not appear that the suggestion had any influence with either the defendant or the State’s attorney with reference to the extent to which the prosecution should be pushed, nor that the defendant did not proceed with the prosecution regardless of any wishes of the plaintiff so far as the defendant otherwise saw fit. The prosecution does not appear to have been ended because the plaintiff consented to a termination of it, but because the defendant did not procure the necessary witnesses, and the State’s attorney chose to stop it. No such consent appears here as would be necessary to affect the plaintiff’s right of recovery.

The publication in the Free Press gave notoriety to the fact of the prosecution of the plaintiff. It naturally followed from the act of prosecution, and if the defendant set the prosecution on foot it was but a natural consequence of his own act. It Avas the same in nature that evidence of how many persons were present and knew of the prosecution, or that rumors of the fact of the prosecution went abroad from mouth to mouth, Avould have been. Evidence of this latter description was held to be admissible in an action of slander in Nott v. Stoddard, 38 Vt. 25. No error appears in the decision in this respect.

The testimony as to what the plaintiff said when informed by Clark of the production of the letter that shoAved his testimony before the arbitrators was untrue, was quite important in the case if the defendant knew of that transaction. The right of the plaintiff to recover depended largely upon what the defendant did know in respect to all matters connected with the testimony of the plaintiff, and upon what the defendant believed from what he knew. This evidence was admissible and proper to be considered for the purpose for which the court permitted it to be considered, if there was any evidence tending to show that the defendant knew of the facts disclosed by it and the jury found such knowledge from the evidence ; and if there was no such evidence it was inadmissible; and if there was such evidence and it was insufficient to prove the knowledge of the defendant, it was not proper to be considered. That there was no direct evidence of such knowledge is conceded here and was held by the court below. Nash v. Doyle, 40 Vt., 96, has been referred to as an authority to show that there was some circumstantial evidence of such knowledge to be submitted to the jury. That was a prosecution for bastardy. The prosecutrix had been induced to make oath to an affidavit that a person other than the defendant was father of the child by unfair means. An important question was whether there was any evidence tending to show that the defendant knew what means were used or not. The affidavit was procured by the defendant’s brother, who was his bail, and the defendant’s attorney ; and the defendant made use of the fact that she had made such an affidavit on the trial. It was held that all these circumstances together were sufficient to warrant a finding of knowledge of the transaction on the part of the defendant.

Here there is no evidence that this defendant’s attorneys, or any of them, knew of the transaction between the plaintiff and Clark, nor that any relative or friend or agent of the defendant’s knew of it. The defendant may have heard of it, but if he did, no one testified to any fact that would show that he had more than a mere conjecture. Such a conjecture is insufficient from which to find a fact to found a right of recovery upon. The admission of this evidence, for the purpose and use made of it, seems to be error.

In the charge to the jury the court defined probable cause accurately and satisfactorily. No just criticism has been, or could be, made of the definition. After giving this definition, the court further charged that, whether such probable cause as thus defined existed in the present case, was for the jury to determine, upon a careful review of all the evidence in the case. This statement of the duty and responsibility of the jury in this respect was not af-terwards varied in the charge, but was re-stated several times, with many just considerations as to the application of it, if it was correct. Afterwards, in the order of the charge as stated in the bill of exceptions, the jury were instructed that if the defendant, knowing the testimony was false, believed it was knowingly so, that would be probable cause. This proposition, by itself, is a statement of what in law would amount to probable cause. If the whole charge had been made to conform to this proposition, and the right of the plaintiff to recover had been made to depend upon whether the facts contained in the proposition existed or not, there would have been no error in law as the law is claimed to be by the defendant’s counsel. But this part of the charge is to be construed with what preceded it upon the same subject, and in connection with that, the jury must have understood that they were to determine the defendant’s belief with reference to the definition of probable cause before stated to them, and that they were to decide, not only upon the existence of the facts, but whether upon the facts they should find to have existed, there was probable cause as defined by the court or not.

What constitutes probable cause in these actions is a question of law for the court. All inferences to be drawn from facts, undisputed or found by the jury to exist, are upon this subject inferences of law and not of fact, and are to be drawn by the court and not by the jury. This rule is peculiar to this class of actions, and has been long established, and is well founded upon sound reasons and good authority. Where the inference to be drawn from existing facts is one of fact, as it usually is in questions of the sufficiency of highways, ordinary care, and the like, it is always to be drawn by the jury. The cases cited upon this point on the part of the plaintiff are apt illustrations of this rule, but they have no application except to cases of that kind. The rule upon this subject as to the existence of probable cause was adopted as early as actions founded upon the want of probable cause were brought into use, and has never been relaxed. In the early history of these actions it was customary to set forth the facts in the defendant’s plea, and upon demurrer the court would determine whether there was probable cause or not, upon the facts set forth. Tindal, Ch. J., Panton v. Williams, 2 Ad. & El., N. S., 192. Where some or all the facts were in dispute the existence of the facts, and that only, was submitted to the jury. The early authorities seem to be uniform to this effect. There are some cases — and among them are Taylor v. Williams, 2 B. & Ad., 845, and Broad v. Ham, 5 Bing., 722 — which a! might seem to countenance the doctrine that the whole evider^ nd all inferences to be drawn from it were to be submitted to! jury. As to these cases, Ch. J. Tindal, in Panton v. Williams, 2 Ad. & El., N. S., 169, in reviewing one of the decisions of Ch. J. Denman, said: There have been some cases in the later books which appear at first sight to have somewhat relaxed the application of that rule by seeming to leave more than the mere question of the facts proved to the jury: but upon further examination it will be found that although there has been an apparent, there has been no real departure from the rule. And he proceeded to apply the rale to the decision he was reviewing, and reversed it. In Turner v. Ambler, 10 Ad. & El., N. S., 252, Lord Denman, Ch. J., said, in granting the rule: A rule nisi must be granted ; but it is not to be presumed that wo mean to question the doctrine of Panton v. Williams. The rule was afterwards stated and enforced in England, in Heslop v. Chapman, 22 El. & E., 296. It has also been strictly adhered to in New York. Pangborn v. Bull, 1 Wend., 345; Baldwin v. Weed, 17 Wend., 224; Bulkley v. Ketelas, 2 Seld., 384. And also in Massachusetts. Kidder v. Parkhurst, 3 Allen, 393.

In practice a trae application of the rule seems to require that if none of the facts are in dispute, the question of probable cause arising upon them should be decided by the court as a question of’ law, without the intervention of the .jury at all. That if some of the facts are undisputed, and others are in controversy, and the question of probable cause cannot be determined upon the undisputed facts without determining the existence of those in dispute, then the case should be presented to the jury by stating which of the disputed facts are to be passed upon and how, so that by determining the mere existence or non-existence of them, the question of probable cause or the want of it will be determined, according to the view of them in law taken by the court,

This charge, in the view taken of it, did not conform to or apply this rule, and appears to be erroneous. Upon the rule adopted by the court below, the charge was very careful, and manifestly fair and impartial, but these qualities cannot cure error, although they would make it much more wholesome.

Exception was taken to the charge upon the effect of want of probable cause upon the question of malice. Want of probable cause and. malice are each essential to the cause of action, and each must be proved, and proof of neither will, as a matter of law, supply proof of the other. The same facts that would make out the want of probable cause in many, and probably in most, cases would tend to show malice. In cases where the facts would have that tendency, the evidence should be submitted upon the question of malice independently, and that question should not be left to depend upon or follow the finding upon the other. Some of the members of this court think this charge upon this subject was in accordance with these views; other members think it was not. Since the judgment must be reversed upon other grounds, further suggestions upon this point are needless.

Counsel for the defendant insist, that this court, having all the evidence before it, can review it and determine the question of the want of probable cause here. The evidence now before the court shows that the plaintiff swore falsely, and that the defendant knew it. These facts are undisputed. If false swearing was perjury, there would be probable cause, beyond question, for the defendant would know that the plaintiff was guilty. But a great deal of testimony is given that is false, and yet is not perjury, and the circumstances are such that those knowing them know that it is not. And, upon the same. circumstances, some persons, owing to their own peculiar relations to them, or to their own peculiarities of thought and judgment, would believe the testimony to be willfully false, while others, differently situated, or with different views, would think it mistakenly so. Here the defendant, from his stand-point and with his views, may have believed that the testimony was willfully false. If ho did, then upon the'case as it is now presented, that belief, in connection with the facts that the testimony was false, and he know it to be so, would amount to probable cause. But if he did not so believe in fact, and the plaintiff was not in fact guilty, then there would be a want of phobable cause. This fact of the actual belief of the defendant is an important one, and upon the evidence, cannot be determined as a matter of law either one way or the other. Therefore, there must be a trial by jury to determine the existence of this fact, as the case now stands, and perhaps others in connection with it, or not, according to the case as it may, upon another trial, be presented. As the case stands, it must be remanded for a new trial.

When the’plaintiff rested his case, the defendant desired, and had the judgment of the court upon it. That judgment was subject to exception by the party against whom it was made, while the case stood as it then did. If against the plaintiff, ho could, with leave of the court, put in more evidence, and thus vary the case. In that event, ho would not be entitled to keep an exception to the decision upon the case as it was before it was varied. It was against the defendant to which he excepted. After that, he was permitted to put in evidence that varied the case, and had a decision of the court upon the case as varied, and exceptions to that decision. He could not vary the case upon which judgment was passed, and still have exception to the judgment. He must stand as to this as the plaintiff would have stood, under the like circumstances.

Judgment reversed, and cause remanded.