[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
This is an action for malicious prosecution of a criminal action in which the plaintiff was charged with the crime of assault and robbery, being armed with a dangerous weapon.
The complaint, in substance, alleged that the Pacific Telephone and Telegraph Company and R.V. Jenkins, one of its employees, commenced and prosecuted the action complained of; that plaintiff was arrested in said action, bound over to the grand jury and confined in jail until discharged upon a not true bill returned by the grand jury, and that the prosecution was malicious and without probable cause.
The trial resulted in a verdict and judgment in favor of the plaintiff and against both defendants. From this judgment, defendants have appealed.
In order to maintain an action for malicious prosecution of a criminal action, it is necessary for the plaintiff to allege and prove that the action complained of was commenced and prosecuted by the defendants without reasonable and probable cause and that it was malicious. The defendants contend that neither of said elements were proved in the instant case and, for that reason, it was error for the trial court to refuse to grant defendants' motion for a directed verdict.
The plaintiff bases his right to recover in this action upon certain allegations contained in the complaint which, in substance, are as follows: That on January 12, 1937, the defendant Jenkins, while acting within the scope of his employment, signed and verified an information before Judge Cohn, municipal judge of the city of Portland and ex officio a justice of the peace, charging that on January 9, 1937, the crime of assault and robbery, being armed with a dangerous weapon, was committed by John Doe and Richard Roe, whose true names were unknown, and caused a warrant to be issued thereunder for the arrest of said unknown parties, intending thereby that the plaintiff, although not named in the information, should be arrested as one of said parties and be prosecuted for said crime, and that, pursuant thereto, the plaintiff was arrested and thereby sustained the damage alleged in the complaint.
The evidence shows, and it is undisputed, that at 9:40 on Saturday morning, January 9, 1937, three days before this information was filed, two masked men armed with revolvers entered the office of G.G. Lundberg, the local cashier of the defendant company, located on the sixth floor of the building occupied by the defendant company in the city of Portland and, by force and violence, robbed him and his assistant of the sum of
$5,484.50 in moneys belonging to the defendant company and made their escape from the building by means of an inside fire-escape leading to a door opening on the street, which they unlocked. While perpetrating the robbery, the men forced Lundberg and his assistant into a steel vault and turned the combination, locking them inside the vault. Another employee of the defendant company, who entered the room while the crime was being committed, was bound and tied with a wire which one of the robbers took from his pocket. They then made their escape with the money, by passing through another office leading to a fire-escape, without being seen by any other employee of the defendant company, and have never been apprehended for the crime, and their identity was unknown when the information was signed and verified by Jenkins.
As a part of his case in chief, the plaintiff called Clarence A. Potts, a deputy district attorney, and he testified as follows:
"Q. Mr. Potts, I will ask you to state what official position you occupy in the County of Multnomah, State of Oregon? A. Deputy district attorney. Q. How long have you been deputy district attorney? A. Oh, it will be four years January 17th, next year. Q. I will ask you if you were acting as deputy district attorney for the County of Multnomah, State of Oregon, on or about the 12th day of January, 1937? A. I was. Q. And where were you assigned for duty at that time? A. Down at the police station. Q. Mr. Potts, I hand you Plaintiff's Exhibit 2, and calling your attention to that portion known as an information, I will ask you to state whether or not you drew the original of the certified copy which I have handed to you? A. I did. Q. Did you draw it on the date it bears? A. I did. Q. And upon whose information did you draw this? A. On the information of the
police department and Mr. Jenkins. Q. Ray V. Jenkins? A. That is correct. Q. And he related the facts to you upon which you based this information? A. That is correct. Q. I will ask you to state whether or not Mr. Jenkins at the time on January 12, 1937, when you drew this information, if he made a disclosure to you mentioning the name of Coe C. White in connection with this information? A. Coe C. White was never mentioned at the time this was drawn or prior to the time this was drawn. I didn't hear the name Coe C. White until some time after this information had been filed."
From this testimony of Mr. Potts, which is wholly undisputed, it will be seen that plaintiff's own evidence shows that this information was drawn by the deputy district attorney after a disclosure to him by the police department and Jenkins of all the facts and circumstances surrounding the commission of the crime which were then known and at that time the name of the plaintiff was never mentioned or considered as being a participant in the commission of the crime. Hence, plaintiff's contention that it was the intention of Jenkins, when signing and verifying this information, to accuse the plaintiff or to later cause him to be arrested and prosecuted for the crime is contradicted by plaintiff's own testimony. Moreover, the undisputed evidence shows that before this information was signed and verified, the robbery was being investigated by the police officers of the city of Portland and at the time it was signed and verified it was done at the request of the police officers and not upon the initiative of Jenkins, or under the directions of the defendant company. Furthermore, the undisputed evidence shows that the subsequent arrest and prosecution of the plaintiff was made and had by the police department
of the city of Portland and not by Jenkins or the defendant company.
From the evidence to which we have referred, it follows that the criminal action was not commenced or prosecuted by the defendants, as alleged in plaintiff's complaint, but was commenced by the filing of an information prepared by a deputy district attorney and the issuance of a warrant by the committing magistrate who had jurisdiction of the crime charged in the information and that the proceedings subsequently taken in the action were conducted and controlled either by the police department of the city of Portland or by the State of Oregon, acting through its district attorney.
It is also shown by the evidence and undisputed that, after the arrest of the plaintiff, he was brought before Judge Cohn as the committing magistrate and that, after the hearing of the evidence introduced by the state, the plaintiff was bound over to appear before the grand jury. It is also undisputed that at said hearing, the plaintiff was present and represented by two attorneys, and that no evidence whatever was introduced or offered upon the hearing in his behalf.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
This is an action for malicious prosecution of a criminal action in which the plaintiff was charged with the crime of assault and robbery, being armed with a dangerous weapon.
The complaint, in substance, alleged that the Pacific Telephone and Telegraph Company and R.V. Jenkins, one of its employees, commenced and prosecuted the action complained of; that plaintiff was arrested in said action, bound over to the grand jury and confined in jail until discharged upon a not true bill returned by the grand jury, and that the prosecution was malicious and without probable cause.
The trial resulted in a verdict and judgment in favor of the plaintiff and against both defendants. From this judgment, defendants have appealed.
In order to maintain an action for malicious prosecution of a criminal action, it is necessary for the plaintiff to allege and prove that the action complained of was commenced and prosecuted by the defendants without reasonable and probable cause and that it was malicious. The defendants contend that neither of said elements were proved in the instant case and, for that reason, it was error for the trial court to refuse to grant defendants' motion for a directed verdict.
The plaintiff bases his right to recover in this action upon certain allegations contained in the complaint which, in substance, are as follows: That on January 12, 1937, the defendant Jenkins, while acting within the scope of his employment, signed and verified an information before Judge Cohn, municipal judge of the city of Portland and ex officio a justice of the peace, charging that on January 9, 1937, the crime of assault and robbery, being armed with a dangerous weapon, was committed by John Doe and Richard Roe, whose true names were unknown, and caused a warrant to be issued thereunder for the arrest of said unknown parties, intending thereby that the plaintiff, although not named in the information, should be arrested as one of said parties and be prosecuted for said crime, and that, pursuant thereto, the plaintiff was arrested and thereby sustained the damage alleged in the complaint.
The evidence shows, and it is undisputed, that at 9:40 on Saturday morning, January 9, 1937, three days before this information was filed, two masked men armed with revolvers entered the office of G.G. Lundberg, the local cashier of the defendant company, located on the sixth floor of the building occupied by the defendant company in the city of Portland and, by force and violence, robbed him and his assistant of the sum of
$5,484.50 in moneys belonging to the defendant company and made their escape from the building by means of an inside fire-escape leading to a door opening on the street, which they unlocked. While perpetrating the robbery, the men forced Lundberg and his assistant into a steel vault and turned the combination, locking them inside the vault. Another employee of the defendant company, who entered the room while the crime was being committed, was bound and tied with a wire which one of the robbers took from his pocket. They then made their escape with the money, by passing through another office leading to a fire-escape, without being seen by any other employee of the defendant company, and have never been apprehended for the crime, and their identity was unknown when the information was signed and verified by Jenkins.
As a part of his case in chief, the plaintiff called Clarence A. Potts, a deputy district attorney, and he testified as follows:
"Q. Mr. Potts, I will ask you to state what official position you occupy in the County of Multnomah, State of Oregon? A. Deputy district attorney. Q. How long have you been deputy district attorney? A. Oh, it will be four years January 17th, next year. Q. I will ask you if you were acting as deputy district attorney for the County of Multnomah, State of Oregon, on or about the 12th day of January, 1937? A. I was. Q. And where were you assigned for duty at that time? A. Down at the police station. Q. Mr. Potts, I hand you Plaintiff's Exhibit 2, and calling your attention to that portion known as an information, I will ask you to state whether or not you drew the original of the certified copy which I have handed to you? A. I did. Q. Did you draw it on the date it bears? A. I did. Q. And upon whose information did you draw this? A. On the information of the
police department and Mr. Jenkins. Q. Ray V. Jenkins? A. That is correct. Q. And he related the facts to you upon which you based this information? A. That is correct. Q. I will ask you to state whether or not Mr. Jenkins at the time on January 12, 1937, when you drew this information, if he made a disclosure to you mentioning the name of Coe C. White in connection with this information? A. Coe C. White was never mentioned at the time this was drawn or prior to the time this was drawn. I didn't hear the name Coe C. White until some time after this information had been filed."
From this testimony of Mr. Potts, which is wholly undisputed, it will be seen that plaintiff's own evidence shows that this information was drawn by the deputy district attorney after a disclosure to him by the police department and Jenkins of all the facts and circumstances surrounding the commission of the crime which were then known and at that time the name of the plaintiff was never mentioned or considered as being a participant in the commission of the crime. Hence, plaintiff's contention that it was the intention of Jenkins, when signing and verifying this information, to accuse the plaintiff or to later cause him to be arrested and prosecuted for the crime is contradicted by plaintiff's own testimony. Moreover, the undisputed evidence shows that before this information was signed and verified, the robbery was being investigated by the police officers of the city of Portland and at the time it was signed and verified it was done at the request of the police officers and not upon the initiative of Jenkins, or under the directions of the defendant company. Furthermore, the undisputed evidence shows that the subsequent arrest and prosecution of the plaintiff was made and had by the police department
of the city of Portland and not by Jenkins or the defendant company.
From the evidence to which we have referred, it follows that the criminal action was not commenced or prosecuted by the defendants, as alleged in plaintiff's complaint, but was commenced by the filing of an information prepared by a deputy district attorney and the issuance of a warrant by the committing magistrate who had jurisdiction of the crime charged in the information and that the proceedings subsequently taken in the action were conducted and controlled either by the police department of the city of Portland or by the State of Oregon, acting through its district attorney.
It is also shown by the evidence and undisputed that, after the arrest of the plaintiff, he was brought before Judge Cohn as the committing magistrate and that, after the hearing of the evidence introduced by the state, the plaintiff was bound over to appear before the grand jury. It is also undisputed that at said hearing, the plaintiff was present and represented by two attorneys, and that no evidence whatever was introduced or offered upon the hearing in his behalf.
That there was probable cause for the arrest and prosecution of the plaintiff was proved by the following facts: About 5 o'clock in the evening of the day on which the robbery was committed, one Frank Weisz, who had been previously convicted of a crime and paroled from the bench, voluntarily appeared at the police station and disclosed to the officers that some six or seven months prior thereto he had been solicited by the plaintiff, Coe C. White, who had been employed by the defendant company for many years prior thereto as an equipment engineer, to join him and one
Morris Albohaire, an ex-convict from the Washington State penitentiary, in committing a robbery of the defendant company similar to the one which was actually committed on January 9, 1937, and he told the officers that he had been furnished, by White, with a blue-print of the sixth floor of the defendant company's building and with a key to the door leading to the street from the foot of the fire-escape, and that the plans of the proposed robbery, as outlined by the plaintiff to him, were identical to the manner followed by the two men who later perpetrated the robbery above referred to. After making said disclosures, Weisz, accompanied by one of the police officers, went to his room and produced the blue-print and delivered the same to the officer. This was introduced and offered in evidence as defendants' exhibit No. 14. Later, Weisz, accompanied by the officers, went to the defendant company's building and pointed out to them the manner in which the plaintiff had proposed to him that the robbery should be committed. This conformed to the manner in which the robbery was actually perpetrated. Weisz also stated to the officers that a key to unlock the door leading from the fire-escape to the street had been given to Albohaire, whose whereabouts at that time Weisz did not know. Upon communicating with the penitentiary officials in Walla Walla, the Portland police found that Albohaire was in Seattle and, at their request, he was taken into custody by the Seattle police, and, upon being notified of that fact, several of the police officers and Jenkins went to Seattle and interviewed Albohaire, who made a full disclosure to them of the proposal made to him by White and this corroborated Weisz' statement in all particulars. At the same time Albohaire delivered the key which he
said he had received from White and, upon an investigation made by the police officers, the key unlocked the door leading from the fire-escape to the street. Upon receiving this information, Lieutenant Schulpius, one of the Portland police officers, telephoned to Sergeant Fleming of the Portland Detective Bureau, directing him to cause the arrest of White, and, under his directions, a warrant was then issued and delivered to another police officer for the purpose of making the arrest. At the time of this delivery, the warrant did not contain the name of Coe C. White, but the officer who made the arrest, upon his own initiative and without being directed to do so, typewrote on the face of the warrant the words: "John Doe whose true name is Coe C. White", and then made the arrest. There was no change, however, made in the information which had been signed and verified by Jenkins and there is an entire absence of evidence showing or tending to show that the plaintiff was arrested at the request of the defendants or either of them, or that the later prosecution of the plaintiff was had at their request.
Section 13-2007, Oregon Code 1930, provides:
"The warrant must specify the name of the defendant, or if it be unknown to the magistrate, the defendant may be designated by a fictitious name, with a statement therein that his true name is unknown, and it must also state a crime in respect to which the magistrate has authority to issue the warrant."
That this statute is valid, see Annotation 51 L.R.A., 219, and 4 Am. Jur., p. 10. But, whether valid or not, no warrant for the arrest of White was necessary under section 13-2111, Oregon Code 1930, since a felony had actually been committed and the arresting officer
had reasonable grounds for believing that White had committed it.
Under the statute, the issuance of a John Doe warrant upon an information charging the commission of a crime by unknown parties was not void ab initio and no liability can be predicated against Jenkins and his employer upon the ground that the warrant upon which the plaintiff was arrested was unauthorized or illegal. It is clear from the evidence that there was reasonable grounds for the arrest of plaintiff and for his subsequent prosecution by the state upon the charge of assault and robbery, being armed with a dangerous weapon, and there was no evidence to support the allegation that plaintiff was prosecuted either maliciously or without probable cause. It is a generally accepted rule and one which prevails in this state that:
"* * * where the result of the preliminary examination before a magistrate is unfavorable to accused and he is held or committed by the magistrate, this is prima facie but not conclusive evidence of probable cause. This prima facie case may be overcome by evidence that the action of the magistrate was obtained by false testimony or other improper means; but unless it is overthrown by testimony of that character, it becomes conclusive and must prevent plaintiff from prevailing." 38 C.J., 411.
Holding to that effect, see Putnam v. Stalker, 50 Or. 210,91 P. 363, and Stamper v. Raymond, 38 Or. 16, 62 P. 20.
Since it is undisputed that a preliminary examination was held and the plaintiff was bound over to appear before the grand jury by the committing magistrate and there being no evidence that the action taken by the committing magistrate was obtained by false
testimony, fraud or other improper means, upon this ground alone, the plaintiff cannot prevail in this action.
It was also shown upon the trial that, after Jenkins had been requested by the police to sign and verify the information, and before doing so, he made a full disclosure of the facts within his knowledge and information to Mr. Omar Spencer, one of the attorneys for the defendant company, and asked his advice as to whether he should sign the information and Jenkins was advised by Mr. Spencer to do so. This is testified to by both Jenkins and Spencer and is uncontradicted and is conclusive upon the question of whether there was probable cause for the initiation of criminal proceedings against the unknown parties charged in the information.
Under this evidence, the law applicable is stated in the Restatement of the Law of Torts, as adopted and promulgated by the American Law Institute, as follows:
"(1) The advice of an attorney at law admitted to practice and practicing in the state in which the proceedings are brought, whom the client has no reason to believe to be interested, is conclusive of the existence of probable cause for initiating criminal proceedings in reliance upon the advice if it is
(a) sought in good faith, and
(b) given after a full disclosure of the facts within the accuser's knowledge and information."
§ 666, p. 416.
Reasonable cause is defined to be such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person charged is guilty. Newell on Malicious Prosecution, § 1, p. 252.
Thus, even if it had been proved in this case that the criminal action complained of had been commenced and prosecuted by the defendants, still the action could not be maintained if the facts were such as to reasonably lead the defendants to believe or to honestly and strongly suspect that the plaintiff was guilty. While it is true that the information disclosed by Weisz and Albohaire came from the lips of persons who had been previously convicted of a crime, yet these disclosures were such as would lead a person of ordinary caution and prudence to believe that the plaintiff was guilty. After checking up on these statements and comparing those made by the one with those made by the other, they were sufficient to lead the police and prosecuting officers, as well as the defendants, to honestly believe that the plaintiff was guilty. In the face of these facts, it is clear that there was reasonable ground for believing the plaintiff to be guilty. Whether the plaintiff was, in fact, guilty or not is wholly immaterial so far as this action is concerned.
For another reason, this action cannot be maintained regardless of who commenced or prosecuted the criminal action. The robbery was actually committed and a large sum of money was taken belonging to the defendant company. It was the duty of the defendant company and of its officers and employees to use all legal means to apprehend and convict the guilty persons and, in doing so, if they acted with good faith, the law will protect them against an action for damages although the accusation may in fact be unfounded. This rule is founded on grounds of public policy to encourage exposure of crime and the punishment of criminals. See Gee v. Culver, 12 Or. 228, 6 P. 775; Hess v.Oregon German Baking Company, 31 Or. 503, 49 P. 803; Nally v. Richmond, 105 Or. 462, 209 P. 871. See also, 18 R.C.L. p. 11.
From what has been said, it follows that this action cannot be maintained and that the court erred in failing to direct a verdict in favor of the defendants. The cause, therefore, will be remanded to the court below with directions to dismiss the action, and it is so ordered.
BELT, J., not sitting.
KELLY, ROSSMAN, BEAN, and LUSK, JJ., concur.
BAILEY, J., dissents in part.