Wood v. Hambly

1 Cal. Dist. Ct. 128

Opinion

Norton, J.

charged the jury substantially as follows t

If the facts and circumstances in and of themselves would satisfy the mind of any one that an offense had been committed, and they pointed towards a particular person as the offender, and in this case the defendant had Mr. Wood arrested under such circumstances, it would constitute probable cause, and plaintiff could not recover. Much testimony had been introduced remote in character, but conceded on both sides to have some bearing on the issue, and so let in for their consideration. The jury would consider all this evidence to know if Mr. Wood intended to steal the books, and if Mr. Hambly has failed to satisfy them that he believed Mr. Wood had such purpose, he cannot sustain his defense on that point. In another branch of the case it is contended that defendant, honestly and bona fide sought the advice of counsel before calling upon the officers of justice to punish the offender against Ms rights, as plaintiff, it is said, was believed to be; and having honestly- and fairly made application to Col. James, a person competent to give advice, Ms action, upon such counsel, constitutes a defense. TMs question appears not to be settled in Great Britain. In this country the Court would charge the law to be that advice fairly obtained from counsel and acted upon in good faith by a complaining party, constituted probable cause. The jury, however, would have to look to the evidence and surrounding facts to determine the good faith of the defendant in seeMng the advice of other counsel before procuring the arrest of plaintiff. If Mr, Hambly concluded to institute a criminal prosecution against the plaintiff, and then called in another lawyer to assist in the proceeding before its commencement, and he approved of the grounds of complaint, it would not be that kind of probable cause to make up a defense. ■ It is said Mr. Hambly is a lawyer; but the fact is insuEcient to show it was not his duty to look elsewhere for advice. It may be that acquainted only with the civil practice, and not relying on his own knowledge, he looked for advice from one skilled in the criminal law, and therefore the fact of plaintiff being a lawyer would not take from him the protection of this defense. But the fact of plaintiff being a lawyer, nevertheless, may be taken into consideration; and whether his application to Col. James was fair and honest was also a matter the jury should not disregard.

The jury found a verdict in favor of plaintiff.