Mr. Justice Freeman
delivered the opinion of the court.
Appellant contends that the verdict and judgment are against the weight of the evidence, that the burden rested on the plaintiff to establish by a clear preponderance of evidence, first, a want of probable cause for procuring the warrant and causing the arrest of the plaintiff upon the charge of larceny, and second, that the defendant was actuated by malice. It is insisted plaintiff has failed to do either of these things and that the judgment cannot be sustained.
There is no douht that where as in Ross v. Innis, 35 Ill., 487-511, a powerful house made an “infamous charge which they knew was unfounded” and wrongfully prosecuted a poor and friendless young man, or where as in Reno v. Wilson, 49 Ill., 97, “there was no semblance of criminal conduct and no act done which could be tortured into crime” and the prosecution was conducted “to gratify bad passions which causelessly excited appellant had not the firmness and discretion to restrain,” or where as in Chapman v. Cawrey, 50 Ill., 517, “no crime was committed and no just suspicion of one” existed, or as in Krug v. Ward, 77 Ill., 610, where the criminal code had been “resorted to for the gratification of personal malice or the attainment of dishonorable personal ends,” in such cases it is fitting that parties so making improper use of the criminal code should be punished in damages in vindication of the law and as an example to others. But it is also true that actions of this character are not to be permitted to discourage criminal prosecutions instituted in good faith upon probable cause, without malice against one honestly believed to be guilty of a criminal act. As said by Mr. Justice Breese in Israel v. Brooks, 23 Ill., 575-576: “Few men could be found who would be willing to originate a criminal prosecution, if on failure to establish the guilt of the accused, he himself was to be subjected to an onerous and expensive suit.” To the same effect is Ames v. Snider, 69 Ill., 376-379, where it is said that “if the prosecuting witness is to be mulcted in damages for an honest error in judgment, few prudent men would run the hazard of instituting a criminal prosecution. It is sufficient if there is probable cause whether the accused is in fact guilty or not.” It is not enough therefore to entitle one to recover damages in a suit for alleged malicious prosecution that he has been arrested and imprisoned charged with a crime and subsequently discharged for want of prosecution or acquitted upon a trial. If the prosecuting witness had probable cause for believing in his guilt and acted without malice, the accused is not entitled to recover damages, whatever the result of the prosecution, and the burden is upon the plaintiff in such action to show affirmatively that there was a want of such probable cause.
In the present ease the defendant Frese swore out the warrant upon which plaintiff was arrested. Frese was in charge for the Parmelee Company of the transfer of scenery and baggage for theatrical companies. He obtained the warrant after the consultation with a police officer of the city, and after an effort, assisted by a fellow employee of Parmelee Co. and by two police officers, to find the plaintiff or obtain some trace of the missing trunk, believed to be in plaintiff’s possession. The jury found in answer to a special interrogatory that the Frank Parmelee Company did not authorize Frese to institute the criminal proceedings against the plaintiff. They were instructed by the court that there was no evidence of such authorization. Plaintiff’s attorneys complain of said instruction and claim that there was evidence which tended to show and did show by a preponderance that Frese was so authorized. If there is such evidence our attention has not been called to it and we have failed to discover it in the record. We do not regard the instruction as erroneous. The rule of the Circuit Court which requires all instructions to be presented at the conclusion of the evidence does not in its terms or scope prevent the court from giving an instruction not so presented if in the court’s opinion proper so to do. The jury found, however, in answer to special interrogatories that “Frese acting as agent for the Frank Parmelee Company” had no probable cause to believe plaintiff guilty of larceny when he instituted the criminal proceedings complained of, and that he was actuated by malice in causing plaintiff’s arrest. The jury also found specially that the defendant Parmelee Company subsequently ratified the criminal proceedings instituted by Frese.
The question, however, .as to whether the Parmelee Company assumed liability for the acts of Frese in the institution and prosecution of the criminal proceeding or subsequently ratified the conduct of Frese in that connection, is subordinate to the inquiry whether the evidence justified the finding of the jury that Frese had no probable cause to institute said criminal proceeding. If he had probable cause, then it is immaterial whether the appellant company ratified his action in that respect or not, since in either event no recovery can be had against either Frese or the company. The question is therefore, does the evidence justify the conclusion that there was no “reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged ?” Davie v. Wisher, 72 Ill., 262-266. In Jacks v. Stimpson, 13 Ill., 701, it was said “an honest belief of the guilt of the accused, founded on circumstances tending to show that he has committed a criminal offense, negatives the idea of a want of probable cause for the prosecution.” In Collins v. Hayte, 50 Ill., 353-354, the court said: “Good faith on the part of the prosecution is always an important if not a vital element of inquiry, and is always a sufficient justification, except where an unreasonable credulity is manifested, inducing the prosecutor to draw conclusions of guilt when it would have been wanting in the perception of a person of ordinary prudence and judgment.” The court further said in the last mentioned case, that there “are few questions of law.more difficult of comprehension by a jury than those which govern trials for malicious prosecutions. It seems difficult for them to appreciate if the plaintiff was really innocent of the charge for which he was prosecuted that he still ought not to recover * * * where there is reasonable or probable grounds to believe in the existence of guilt.” See also Harpham v. Whitney, 77 Ill., 32-38; Palmer v. Richardson, 70 Ill., 544-545-6; Young v. Lindstrom, 115 Ill. App., 239—243.
If it be true in the case at bar, as claimed by appellant’s counsel, that the preponderance of the evidence tends to show the missing trunk was in fact found in the car and turned over to plaintiff and his helper—the witness Cooper—for delivery at its destination and that it was not so delivered nor otherwise accounted- for, such fact if sufficiently proven would certainly go far to justify the defendant Frese in an honest belief in the guilt of the accused and in the institution of criminal proceedings. Plaintiff testifies that in company with other drivers and their wagons he was present at the car in which the missing trunk should have arrived. He was given a copy of the list of the baggage supposed to be in the car.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Freeman
delivered the opinion of the court.
Appellant contends that the verdict and judgment are against the weight of the evidence, that the burden rested on the plaintiff to establish by a clear preponderance of evidence, first, a want of probable cause for procuring the warrant and causing the arrest of the plaintiff upon the charge of larceny, and second, that the defendant was actuated by malice. It is insisted plaintiff has failed to do either of these things and that the judgment cannot be sustained.
There is no douht that where as in Ross v. Innis, 35 Ill., 487-511, a powerful house made an “infamous charge which they knew was unfounded” and wrongfully prosecuted a poor and friendless young man, or where as in Reno v. Wilson, 49 Ill., 97, “there was no semblance of criminal conduct and no act done which could be tortured into crime” and the prosecution was conducted “to gratify bad passions which causelessly excited appellant had not the firmness and discretion to restrain,” or where as in Chapman v. Cawrey, 50 Ill., 517, “no crime was committed and no just suspicion of one” existed, or as in Krug v. Ward, 77 Ill., 610, where the criminal code had been “resorted to for the gratification of personal malice or the attainment of dishonorable personal ends,” in such cases it is fitting that parties so making improper use of the criminal code should be punished in damages in vindication of the law and as an example to others. But it is also true that actions of this character are not to be permitted to discourage criminal prosecutions instituted in good faith upon probable cause, without malice against one honestly believed to be guilty of a criminal act. As said by Mr. Justice Breese in Israel v. Brooks, 23 Ill., 575-576: “Few men could be found who would be willing to originate a criminal prosecution, if on failure to establish the guilt of the accused, he himself was to be subjected to an onerous and expensive suit.” To the same effect is Ames v. Snider, 69 Ill., 376-379, where it is said that “if the prosecuting witness is to be mulcted in damages for an honest error in judgment, few prudent men would run the hazard of instituting a criminal prosecution. It is sufficient if there is probable cause whether the accused is in fact guilty or not.” It is not enough therefore to entitle one to recover damages in a suit for alleged malicious prosecution that he has been arrested and imprisoned charged with a crime and subsequently discharged for want of prosecution or acquitted upon a trial. If the prosecuting witness had probable cause for believing in his guilt and acted without malice, the accused is not entitled to recover damages, whatever the result of the prosecution, and the burden is upon the plaintiff in such action to show affirmatively that there was a want of such probable cause.
In the present ease the defendant Frese swore out the warrant upon which plaintiff was arrested. Frese was in charge for the Parmelee Company of the transfer of scenery and baggage for theatrical companies. He obtained the warrant after the consultation with a police officer of the city, and after an effort, assisted by a fellow employee of Parmelee Co. and by two police officers, to find the plaintiff or obtain some trace of the missing trunk, believed to be in plaintiff’s possession. The jury found in answer to a special interrogatory that the Frank Parmelee Company did not authorize Frese to institute the criminal proceedings against the plaintiff. They were instructed by the court that there was no evidence of such authorization. Plaintiff’s attorneys complain of said instruction and claim that there was evidence which tended to show and did show by a preponderance that Frese was so authorized. If there is such evidence our attention has not been called to it and we have failed to discover it in the record. We do not regard the instruction as erroneous. The rule of the Circuit Court which requires all instructions to be presented at the conclusion of the evidence does not in its terms or scope prevent the court from giving an instruction not so presented if in the court’s opinion proper so to do. The jury found, however, in answer to special interrogatories that “Frese acting as agent for the Frank Parmelee Company” had no probable cause to believe plaintiff guilty of larceny when he instituted the criminal proceedings complained of, and that he was actuated by malice in causing plaintiff’s arrest. The jury also found specially that the defendant Parmelee Company subsequently ratified the criminal proceedings instituted by Frese.
The question, however, .as to whether the Parmelee Company assumed liability for the acts of Frese in the institution and prosecution of the criminal proceeding or subsequently ratified the conduct of Frese in that connection, is subordinate to the inquiry whether the evidence justified the finding of the jury that Frese had no probable cause to institute said criminal proceeding. If he had probable cause, then it is immaterial whether the appellant company ratified his action in that respect or not, since in either event no recovery can be had against either Frese or the company. The question is therefore, does the evidence justify the conclusion that there was no “reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged ?” Davie v. Wisher, 72 Ill., 262-266. In Jacks v. Stimpson, 13 Ill., 701, it was said “an honest belief of the guilt of the accused, founded on circumstances tending to show that he has committed a criminal offense, negatives the idea of a want of probable cause for the prosecution.” In Collins v. Hayte, 50 Ill., 353-354, the court said: “Good faith on the part of the prosecution is always an important if not a vital element of inquiry, and is always a sufficient justification, except where an unreasonable credulity is manifested, inducing the prosecutor to draw conclusions of guilt when it would have been wanting in the perception of a person of ordinary prudence and judgment.” The court further said in the last mentioned case, that there “are few questions of law.more difficult of comprehension by a jury than those which govern trials for malicious prosecutions. It seems difficult for them to appreciate if the plaintiff was really innocent of the charge for which he was prosecuted that he still ought not to recover * * * where there is reasonable or probable grounds to believe in the existence of guilt.” See also Harpham v. Whitney, 77 Ill., 32-38; Palmer v. Richardson, 70 Ill., 544-545-6; Young v. Lindstrom, 115 Ill. App., 239—243.
If it be true in the case at bar, as claimed by appellant’s counsel, that the preponderance of the evidence tends to show the missing trunk was in fact found in the car and turned over to plaintiff and his helper—the witness Cooper—for delivery at its destination and that it was not so delivered nor otherwise accounted- for, such fact if sufficiently proven would certainly go far to justify the defendant Frese in an honest belief in the guilt of the accused and in the institution of criminal proceedings. Plaintiff testifies that in company with other drivers and their wagons he was present at the car in which the missing trunk should have arrived. He was given a copy of the list of the baggage supposed to be in the car. On that list was the name “Belle Bobbins.” He says he and others looked for a trunk bearing that name, but did not find it, that Breitenbach, the agent of the theatrical company having charge of the baggage contained in the car, said “That must be Robinson”; that they looked for a Robinson trunk and did not find it. Breitenbach on the other hand had testified that the Robinson trunk was there and that it was found there. He says the name on the list was “Robbins” but on the trunk it was “Robinson,” and that owing to the difference between the name shown on the list and the name on the trunk, there was some discussion about it, but that he had the Robinson trunk tagged to go to the Victoria Hotel, and that plaintiff helped him. Frese testifies that the Robinson trunk was there and that he had it set aside with instructions to have it put on plaintiff’s wagon, which was to carry the baggage going in that direction. He testifies that after being arrested plaintiff said that he remembered the trunk and where he delivered it, and that he could “go around and show you” where the baggage in his charge had been delivered. In this Frese is partly corroborated by Officer Qualey who testifies that plaintiff said at that time that he “had seen the trunk set out on the platform,” referring to the trunk in controversy. The witness Hughes describes the Robinson trunk which he says was in the car and was set aside to go to the Victoria Hotel, and states further that when plaintiff’s wagon was nearly loaded, he called plaintiff’s attention to the trunk and swung it on to the back end of plaintiff’s wagon. Another witness, Canada, testifies that he saw the trunk in the car. As against the positive testimony of these five witnesses, there stands, first, the testimony of plaintiff that the trunk was not found in the car, notwithstanding the evidence tending to show that after his arrest plaintiff admitted to Officer Qualey and to Frese in the presence of others, some of them friends of the plaintiff, that he saw the trunk in the car. Hone of these friends of the plaintiff was called to deny that plaintiff did so state. Second, there is the evidence of Cooper, plaintiff’s helper, who also has a suit pending against the defendants for his arrest at the same time. He testifies that the Robinson trunk “was not seen at all,” that he “never saw a trunk by the name of Robinson.” His testimony to this effect is, however, very materially weakened by his answer to a previous interrogatory. He had been asked if he helped that day “in the search for the Robinson trunk.” His answer was “Ho, the others really placed the trunk to one side and said, 'shove this trunk on that side, it goes over there,’ and I was a new man at the place. I did not look for the name Robinson.” In view of the positive testimony referred to that the Robinson trunk was actually placed to one side as Cooper states, his testimony to that effect is at least corroborative of the witnesses for the defense and tends to show that the Robinson trunk was in the car, notwithstanding subsequent denials. •
It is urged that two of the lawyers acting in plaintiff’s behalf testified that Frese stated in their presence “that he only believed Griffin had a guilty knowledge of the missing trunk,” that he “did not believe John Griffin had taken the trunk,” and “that he thought someone must have doped John and that he believed that John might know where it was.” This is called “a confession from the lips of Frese” that there was no probable cause for plaintiff’s arrest. We do not so understand the meaning of the alleged statement. It was at the most a mere expression of opinion that though plaintiff might not have taken the trunk himself, he at least had “a guilty knowledge” of the taking. It purports to have been made to a couple of plaintiff’s legal representatives in a casual conversation, the whole of which is not given. It was a mere speculation at the best and not entitled to serious consideration as evidence of a want of probable cause for the arrest. Frese apparently acted not only upon his own knowledge as to the trunk having been found in the car, but upon corroborative information from other witnesses, not only that the trunk was there but also that it had been turned over to plaintiff for delivery and had not been delivered. If he believed and in good faith acted upon such information, he was acting not without probable cause. Anderson v. Friend, 71 Ill., 475-480. As we said in Knickerbocker Ice Company v. Scott, 76 Ill. App., 645-648, “if appellants had reasonable grounds for suspicion supported by circumstances sufficiently strong to warrant such belief in a cautious man, then there was probable cause.” In addition to the evidence referred to, there was the additional information clearly proven and substantially uncontradicted that at that time plaintiff’s habits and associations were not of a character such as, in view of the circumstances attending the disappearance of the trunk, would be likely to exempt him from suspicion.
It-is true, as stated by plaintiff’s attorneys, that malice may be inferred from want of probable cause where the circumstances are inconsistent with good faith on the part of the prosecutor and where such want of probable cause has been clearly proven. Comisky v. Breen, 7 Ill. App., 369-372. It is vigorously asserted by plaintiff’s attorneys that the defendants were actuated by malice; but unless it was malicious to act in good faith upon the belief that there was probable cause to believe plaintiff guilty of the offense charged, we find no evidence of its existence. There was, so far as appears, no desire to injure the accused. There is evidence tending to show that some of the defendants acted upon a positive belief in his guilt; but it can scarcely be said that appellant was actuated by malice in a prosecution which it did not authorize and of which it had no knowledge until afterward. There are in this case, as frequently happens, expressions in testimony on both sides which may be criticised and upon which charges of inconsistency, untruthfulness or lack of reliability may be based. We cannot undertake to- follow counsel in discussing these alleged inconsistencies. We have examined the whole testimony with care and devoted all the time we deem necessary to the statement of our conclusions and the grounds upon which they rest. We are of the opinion that plaintiff has failed to show a want of probable cause for his arrest, or the existence of malice in the institution or prosecution of the criminal proceeding, and that the verdict and judgment are against the great preponderance of the evidence.
In view of this conclusion it is unnecessary to consider other questions argued in the briefs. The judgment of the Circuit Court must be reversed, with a finding of facts.
Reversed with finding of facts.