Johns v. Marsh

Alvey, J.,

delivered the opinion of the Court.

This was an action for malicious prosecution, brought by the appellee against the appellant. The rulings of the Court below, to which errors are imputed, are those by *332 which, five of the seven prayers offered by the defendant for instructions to the jury were overruled. The two instructions given at the instance of the plaintiff were conceded by the defendant, and they, together with the third and sixth prayers granted on the part of the defendant, constituted all the instructions that were given to the jury. And, upon examination, it would appear that the defendant obtained, in the instructions thus given, the full benefit of all the principles of law that he could in reason ask to have applied to the case.

By the first of the prayers rejected, of those offered by the defendant, the Court was asked to say to the jury that their verdict must be for the defendant, unless they should find that the defendant was actuated by malice, and also that be acted without reasonable and probable cause, in instituting the criminal proceeding against the plaintiff. Now, however correct in principle this proposition may be, in its abstract form, and as offered in this prayer, it could hardly have been a safe guide for the jury. It is doubtless true, and not at all controverted by the plaintiff, that, in order to maintain the action, it was incumbent on the plaintiff to show that he had been prosecuted by or at the instigation of the defendant, and that such prosecution was instituted maliciously, and without probable cause. These ingredients were essential to the right of action, and if they were not found to co-exist the action was not maintainable. And while the malice necessary to the right of recovery may not be deduced as a necessary legal conclusion from a mere act, irrespective of the motive with which the act was done, yet, any motive other than that of instituting the prosecution for the purpose of bringing the party to justice, is a malicious motive on the part of the person who acts under the influence of it. As was accurately stated by Mr. Justice Í*aeke, afterwards Baron Paeice, in the case of Mitchell vs. Jenkins, 5 B. & Ad., 594, “ the term ‘ malice/ in this form of action, is not *333 to be considered in the sense of sjfite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives.” If, for example, a prosecution is initiated upon weak ánd unsubstantial ground for purposes of annoyance, or of frightening and coercing the party prosecuted into the settlement of a demand, the surrender of goods, or for the accomplishment of any other object, aside from the apparent object of the prosecution and the vindication of public justice, the party who puts the criminal law in motion under such circumstances lays himself open to the charge of being actuated by malice. Such motives are indirect and improper, and for the gratification of which the criminal law should not be made the instrument. Add. on Torts, pp. 594, 613; 2 Greenl. Ev., sec. 453. Taking then the term “ malice” in the sense as here explained, it is quite obvious the prayer of the defendant was too abstract in form, and would not have enlightened the jury as to what constituted malice in the sense of that term as applied to this action; but the jury would have been at liberty to adopt their own notion as to the extent and meaning of tíre term. Without any instruction at all upon the subject, explaining the sense in which the term should be applied, the jury would most likely take it in its popular and restricted sense of personal enmity, and desire of revenge. Of this, however, the defendant could not complain. But the prayer.is defective in another particular. It required the jury to find, as a condition upon which they could render a verdict for the plaintiff, that the defendant had acted without reasonable and probable cause in instituting the criminal proceeding. Now, while it is perfectly well settled, that if there be reasonable or probable cause, to the knowledge and honest belief of the defendant, no malice, however flagrant or distinctly proved, will make the defendant liable, yet the question as to what does or does not amount to probable cause is not one to be *334 submitted to the finding and conclusions of the jury. That question is one compounded of law and fact; and while the jury are required to find whether the facts alleged in support of the presence or absence of probable cause, and the inferences to be drawn therefrom, really exist, it is for the Court to determine whether, upon the facts so found, there be probable cause or the want of it. Boyd vs. Cross, 35 Md., 194 ; Cooper vs. Utterbach, 37 Md., 283 , 317; Stansbury vs. Fogle, 37 Md., 386 ; 1 Tayl. Ev., p. 40, and cases there cited. In view of this well established principle, the prayer was properly rejected, even if it had been free from all other objections.

Then, as to the second prayer of the defendant, also rejected. What has been said in considering the first prayer, in respect to the question of malice, equally applies to this. By this prayer, the Court was requested to instruct the jury, that if they should find that the defend-, ant was not actuated by malice in instituting the prosecucution, their verdict should be for him. This result was provided for in the prayer offered by the plaintiff, which was conceded by the defendant, and upon which there is and can be no question raised on this appeal. By that prayer, the jury were instructed that it was competent for them to infer malice from the want of probable cause as therein defined, if the existence of malice was not negatived by the proof before them; and it was only in the event of finding the existence of malice, that the verdict could be found for the plaintiff according to the instruction. There was, therefore, no occasion for the instruction asked for by the second prayer, unless it had furnished the jury with an explanation of the sense in which the term “malice” should have been applied. But that, as we have seen, it failed to do.

It being conceded that the defendant got the full benefit of his fourth prayer, which was rejected, in his sixth prayer, which was granted, a reversal is not claimed, nor *335 could it be, for any supposed error in rejecting tbe fourth prayer. And passing over the fourth prayer, we come to the fifth, which was also rejected. This prayer presented the question as to what facts, if found by the jury, would constitute probable cause. By this prayer,.the Court was asked to instruct the jury, that if they found that the defendant understood the plaintiff to swear contrary to the fact in regard to the license, and, acting upon that belief, he laid the charge before the grand jury, that those facts constituted probable cause, notwithstanding such belief was founded wholly in misapprehension or mistake in point of fact. The Court below was certainly right in declining to affirm this proposition.

Probable cause, according to the definition adopted by this Court, is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in believing that the accused was guilty. Boyd vs. Gross, 35 Md., 197 ; Cooper vs. Utterbach, 37 Md., 282, 318 . It .is very true, probable cause does not depend on the actual state of the case, in point of fact, as it may turn out upon legal investigation. It is made to depend upon knowledge of facts and circumstances which were sufficient to induce the defendant, or any reasonable person, to believe the truth of the accusation made against the plaintiff, and that such knowledge and belief existed in the mind of the defendant at the time the charge was made or being prosecuted, and were, in good faith, the reason and inducement for his putting the law in motion. Delegal vs. Highley, 3 Bing. N. C., 950; McWilliams vs. Hoban, 42 Md., 57 ; 2 Greenl. Ev., sec. 455. Mere belief that cause existed, however sincere that belief may have been, is not sufficient; for, as said by Judge Cooley, one may believe on suspicion and suspect without cause, or his belief may proceed from some mental peculiarity of his own; there must he such grounds of belief, founded upon the actual knowledge of facts, as would *336 influence the mind of a reasonable person, and nothing-short of this can justify a serious and formal criminal charge against another. Cooley on Torts, 182. The defendant here was the defendant in the cause in which it was supposed the plaintiff had committed perjury. He was present in Court and heard the testimony, and he was therefore not liable to he misled or imposed upon by any mere report of what occurred. As witness for himself in this case he has stated whát he understood the plaintiff’s testimony to have been on the occasion referred to. He says “ that when the plaintiff was called as a witness he stated that he was carrying on business as agent for his wife; that Mr. McIntosh, the counsel, then said, ‘then the license is in your wife’s nameand that Marsh made no reply, hut bowed his head, and he, defendant, supposed that silence gave consent; that Marsh did not deny that the license was in his wife’s name, and that he, defendant, paid no more attention to what was said, and thinks he has given the substance of Marsh’s testimony.” Having himself heard this testimony, assuming that he is correct in his recollection of it, it was not, to say the least of it, a charitable construction, and one that a discreet, careful man would readily adopt, to conclude, on learning that the license was not in the name of the wife, that Marsh had committed wilful and corrupt perjury. But if we assume, as the prayer does, that Marsh, the plaintiff, swore, or meant to he understood as swearing, at the trial referred to, that the license in question had been issued in his own name, and not that of his wife, there is no ground whatever for saying that there was probable cause to the knowledge and belief of the defendant. Even if there were circumstances of suspicion in the mind of the defendant which might have been readily removed or explained, by reasonable and proper inquiry, and there was no inquiry made, such circumstances cannot be made the ground for showing the exist *337 ence of probable cause. Perryman vs. Lister, L. Rep., 3 Exch., 197, Exch. Ch.; S. C., 4 L. Rep., H. L., 521; Add. on Torts, 592. However confident or strong therefore the belief of the defendant may have been in regard to the existence of probable cause for the prosecution, if that belief was induced by his own negligence, or from error or mistake as to the real state of the facts, without just cause of suspicion furnished by the plaintiff, the proof of probable cause must fail. Merriam vs. Mitchell, 13 Me., 439; 1 Am. L. Cas., (3rd Ed.,) 221; 2 Greenl. Ev., sec. 455. The prayer proceeds upon the concession that the defendant, in initiating the prosecution against the plaintiff, acted upon a mistake or misapprehension of the facts, and that the real fact was the reverse of what the defendant represented it to be. It is insisted, however, inasmuch as the defendant at the time believed in the truth of the state of case as he presented it, it therefore constituted probable cause. But, in regard to such proposition, both reason and authority are conclusive against the defendant.

The prayer Ho. 5-| contains the same enumeration of facts as prayer Ho. 5, and asked that the Court would instruct the jury, that those facts, if believed, were evidence tending to prove the absence of malice on the part of the defendant, even though it might be found that the plaintiff swore that the license had heen taken out in his own name, and not that of his wife.

Prayers of this character, merely calling attention to and emphasizing certain items of proof as tending to prove certain facts, have been repeatedly condemned by this Court as being liable to abuse, and as calculated to mislead the jury. The Court in ruling the evidence admissible, on a general offer, allows it to be considered and weighed for all the legitimate purposes of the case; and its force and bearing as means of proving or disproving any particular fact in contest is exclusively for the jury. If a prayer of this character could be entertained in respect *338 to one fact or circumstance, it could be in respect to any other in the case, down to the remotest and the most minute; and if in respect to circumstances in support of any particular fact, it would he proper so to instruct in respect to all opposing or adverse facts and circumstances. This would lead to manifest abuse. The refusal of such prayers was approved by this Court in the cases of Hurtt vs. Woodland, 24 Md., 394 , and Mason vs. Poulson, 40 Md., 355 , and we can see no good reason why we should depart from the rule of practice thus sanctioned.

(Decided 15th July, 1879.)

Upon the whole, we find nothing in anjr of the rulings appealed from that requires a reversal, and we must therefore affirm the judgment.

Judgment affirmed.