Carpenter v. Shelden

In an action against several defendants for malicious prosecution, the separate acts and declarations of individual defendants, ought not to be admitted in evidence to charge other defendants not then present, in the absence of any proof of conspiracy. In such an action the jury cannot, upon the question of malice, and in determining the amount of damages, take into consideration facts, establishing against some of the defendants, a case of false imprisonment; that constituting a distinct cause of action for which those defendants may he rendered liable in another suit. The question of probable cause, upon a given state of facts, is in all cases a ques- ■ tion of law. It is therefore erroneous for the judge, in an action for malicious prosecution, to submit it to the jury to determine whether the facts and circumstances in evidence afforded the defendants reasonable grounds for believing that the plaintiff was guilty of the offences which they laid to his charge. It is also erroneous to shift the burden of proof from the plaintiff to the defendants, by instructing the jury, that if the defendants acted upon information, the jury must be satisfied that they believed in its truth. The jury should be instructed that they are bound to presume that the defendants believed in the truth of the information upon which they acted, unless it clearly appears from the evidence that the information was false, and that they knew it to be so. A joint verdict against several defendants, as tort-feasors, upon several counts, all of which are good, cannot be reformed by limiting it to particular counts or particular defendants; but if upon any one of the counts, and as against any one of the defendants, it is contrary to law or evidence, it must be set aside. (Before Duer, Mason, and Camtbell, J.J.)

Motion for a new trial upon a case. The cause was tried at the New York Circuit, in April, 1848, before Justice Hurlbutj and was transferred to this court in. pursuance of the statute. The action was for malicious prosecution. The plaintiff was a stockholder in the Kidd Salvage Company, and the defendants were members and agents of that company. In June and July, 1846, the plaintiff was engaged at Caldwell’s Landing, in investigating certain alleged frauds of the said company, and procuring affidavits tending to prove the existence of said frauds. Whilst so engaged, he was arrested by the procurement of the defendants, and certain other members and agents of said company. On the 14th of July, 1846, at an early hour of the morning, a Miss Lemoine, who was a fortune teller and one of the employees of the said company, acting in concert with the defendants and other persons, some members and some agents of said company, sent Cowles, another agent of said company, and one of the defendants, to the police office of the 10th District of the City of New York, to procure the services of Benjamin Whitehouse and Jackson Bumstead, two police officers of said district. Cowles returned with the police officers before mentioned, to the house of the said Lemoine, in Broome street, where they saw and received instructions from the defendant Shelden. He also induced the police officers to accompany him to the Tombs, and thence to the office of the chief of police. The defendant desired the chief of police to allow the police officers to go to Brooklyn, and ascertain whether the plaintiff had passed counterfeit money at Brooklyn, and near the racecourse. On the earnest solicitations of said Shelden, the chief of police consented to send the said two officers to Brooklyn, where they speedily ascertained that the plaintiff was not the man who had passed the counterfeit money, which information they communicated to the defendant Shelden on their return. Afterwards, the defendants, under pretence of effecting the arrest of one Andros, a notorious counterfeiter, induced the chief of police to send the officers aforesaid to Caldwell's Landing, in company with the defendant Shelden. Shelden informed the said chief of police that the plaintiff was aiding Andros to escape, and induced said chief to direct said officers to arrest the plaintiff, if they should detect him in aiding said Andros, as charged by Shelden. • The expenses of the officers were to be paid by Shelden, and he gave Bumstead $5 for that purpose, and on a subsequent occasion, his attorney, George Bowman, paid Whitehouse $20 for his services in the matter. The plaintiff was in New York on ■ that day, and might have been arrested before the boat left the city ; but, in pursuance of the suggestions of the defendants, the arrest was deferred till the boat arrived at Caldwell’s Landing. The officers went to the boat one quarter of an hour before her departure, and there saw the plaintiff, but made no attempt to arrest him. Miss Lemoine and the defendant Shelden were also there, and all the parties went up as passengers in the said boat. On the arrival of the boat at Caldwell’s Landing, the plaintiff, who was accompanied by two ladies, was allowed to go ashore without any molestation, but soon after was arrested by White-house, at the pressing request of the defendants Shelden and others. Before the arrest, the defendant Shelden stated in substance to Whitehouse, at Caldwell’s Landing, that the plaintiff was a notorious counterfeiter, and had passed counterfeit money in four or five places in New York and Brooklyn. The defendants charged the plaintiff with several other crimes, and finally procured his arrest and imprisonment, until the following day, 'when he was carried to New York, and prosecuted by them for several offences, among which was the charge of passing counterfeit money and threatening to shoot Pierson. The plaintiff was, by the procurement of the defendants, taken before nearly all the police magistrates in the city—first, to the office of the chief of police; secondly, to the Tombs ■ thirdly, to Justice Taylor, at Essex Market; fourthly, back to the office of the chief of police, and then again before Wm. Wain Drinker, Esq., the police justice at the Tombs. No one of these magistrates thought the evidence produced against the plaintiff proved such probable cause or reasonable ground to believe the plaintiff guilty, as to warrant his committal, and after a very full examination before Mr. Justice Drinker, he was discharged at about half-past ten or eleven o’clock, P. M., on the fourteenth of July, 1846 ; but, at the request of the defendant’s attorney, Justice Drinker adjourned the examination over till the next Monday, when the plaintiff attended, but no one appearing to prosecute him, he was finally discharged. During all these examinations, the plaintiff did not call any witnesses in his behalf. The examination before Justice Drinker was conducted on the part of the prosecutors by Pierson, Bowman, Coit, and others, and Cram, Cowles, Michael Lynch, and others, were there as witnesses, as well as Shelden and Freeland.. Cram was the chief witness, and he swore to all the affidavits which Bowman prepared for his signature and verification except one. The plaintiff returned to Caldwell’s Landing on the 15th July, 1846, to pursue his investigations, and collect evidence in relation to the Kidd Salvage Company. On the same day, the defendants, Coit and Michael Lynch, acting in conjunction with the other defendants, went to Leonard Gurnee, Esq., a justice of the peace of Rockland county, made a complaint there against him of his (Carpenter’s) shooting at Lynch some three months before that time, with intent to kill. Lynch was a laborer, employed by the Kidd Salvage Company, in carrying on their operations at Caldwell’s. On the examination, it very clearly appeared that the plaintiff did not shoot at Lynch, and after the examination was closed, Lynch admitted that the complaint was altogether unfounded, and that it was made by the instigation of others. The magistrate being entirely satisfied that there was no probable cause for the charge, dismissed it, without calling on the plaintiff to introduce any evidence in his exculpation. No sooner had Carpenter, the plaintiff, been discharged from custody, on the complaint of Lynch, than the defendant procured him to be again arrested, on a warrant issued upon the charge of aiding and abetting the escape of Andros, a counterfeiter. This warrant was issued by Justice De Noyells, of Rockland County ; and the defendants in this suit, by their counsel Pier-son, Bowman, Coit,, Prall, and Frazier (who was also district attorney of Rockland county), appeared before the magistrates of Rockland, to prosecute Carpenter. But after Bennett’s discharge, the prosecutors -introduced no evidence against Carpenter, and he was discharged, without offering any evidence himself, or having any offered against him. When he was discharged from this last complaint, his counsel, William Nelson, of Peekskill, and Mr. Cutler, supposing no other prosecution in contemplation, left the village of Haverstraw, where tlie last examination was held, and took the first boat to go to Peekskill. After they had taken the boat, and Carpenter was left at Haverstraw, some of the defendants procured him to be arrested on warrants issued several days before, and which they had kept in their possession for that purpose. Carpenter found bail to keep the peace, and was discharged, no one appearing against him at the Rockland Sessions. He then commenced this suit for malicious prosecution. At the close of the plaintiff’s testimony, the defendants moved for a non-suit, specifying, among others, the following grounds : —1. That, as to some of the defendants, there was no proof establishing, or tending to establish, any cause of action whatever, and that the court ought so to decide. 2. That this being so, the action being thus far put forth and supported as an action for conspiracy, could not be sustained, and that the court ought so to decide. 3. That the evidence showed no acquittal of the plaintiff in the legal sense of the term, upon any of the charges made against him, and that the counts alleging an acquittal were not sustained. 4. That it appearing that the plaintiff had never been legally acquitted for any of these charges, but only discharged on the application for him to be held to answer, and the defendant’s now offering to prove that he had since been legally held to answer on indictments for the same charges, which indictments were pending untried, such proof should be admitted and held a bar to the action, or the further maintenance of it, the prosecution of those charges not having been legally terminated. 5. That the plaintiff had not established the want of probable cause for the prosecutions. G. That the plaintiff had not proved malice in the legal meaning of the term. 7. That the court was bound to decide if the plaintiff had or had not made out the want of probable cause. The court ruled that the plaintiff had not proved any of the counts of his declaration save the first five, to which counts he must be confined—to which ruling, the plaintiff, by his counsel, excepted. That as to the said first five counts, the court overruled the motion for nonsuit, and overruled all the objections taken by the defendants as applied to the said five counts : To which rulings and decisions of the court, the defendants excepted. The testimony being closed, the court charged the jury, and among other things stated that—It was incumbent on the plaintiff to show a prosecution of him by. the defendants; that a prosecution was usually instituted by a written complaint, but it may be merely oral if made upon oath as a criminal charge, and taken down by the magistrate in writing for the purpose of investigation. That such a complaint is sufficient to sustain the action, if the plaintiff appears, and is put to trial or examination upon it. But that it was necessary the jury should be satisfied, that it was made to a magistrate with a view to induce him to entertain it, as a criminal charge. That such a complaint did not appear to be proved here until the parties came before Justice Drinker, and all the anterior proceedings the jtiry might lay out of view in this action, except upon the question of malice, and in determining the amount of damages, if they should arrive at that question. That if the jury should find that there was a complaint by the defendants against the plaintiff before Justice Drinker, and that witnesses were examined upon it, and that he was discharged, the- plaintiff had made out the first step in his case, to wit, a prosecution. That the next question which presented itself, was the question of probable cause. That the plaintiff, to maintain this action,, must show, not only a malicious prosecution, but also that it was instituted and prosecuted without any reasonable or probable cause. That the' plaintiff must show this, or his action could not be maintained,, and it was for the jury to inquire whether that had been done here. That the defendants were not called upon in the first instance to prove that they had reasonable or probable cause—the burden of proof did not lie upon them, but the plaintiff must bear it, and he must show to the satisfaction of the jury, in the first instance, an entire absence of probable cause, for without this, however malicious the prosecution might have been, his action must fail. That it was invariably necessary in an action of this nature for the plaintiff to give some evidence, or to show from the circumstances of the prosecution, that it was groundless. That it is not in general sufficient to prove a mere acquittal, or even to prove any neglect or omission on the part of the defendant to make good his charges. That malice may sometimes be inferred from the absence of probable cause, but the want of probable cause cannot be inferred from the most express malice. That what facts and circumstances amount to probable cause is a question of law when either the facts are undisputed, or.sufficient facts' are established to determine the question. But whether those facts and circumstances exist in a particular case, is a question of fact for the determination of the jury. That whether there was probable cause in the present case, might be regarded as a mixed question of law and of fact, and it became the duty of the court to submit the facts to the jury, with such instructions on the subject, as the case seemed to demand. That probable cause was the existence of such facts or circumstances, or both, as would lead the mind of a man of common sense, and ordinary prudence and caution, to believe the plaintiff to be guilty. That the facts constituting probable cause must have been .known to the defendants, or some of them, or they or some of them must have been informed of such facts before the complaints and prosecutions were instituted, and they must have believed such information to be true. That it was not suEcient that the defendants suspected the existence of crime—they must have actually believed it, and if they acted on information, the jury must be satisfied that they believed in its truth. That it was'for the jury to determine, whether the facts and circumstances detailed in the evidence, afforded the defendants reasonable grounds for believing that the plaintiff was guilty of the offences which they laid to his charge. If probable cause existed, it was a complete bar to. the plaintiff's recovery. That the absence of probable cause alone would not suEce to maintain this action, but the plaintiff must show in addition, that the prosecution against him was instituted by the defendants maliciously. That the malice necessary to support this action consisted in a corrupt intent to do a wrong, or to effect an injury for an improper or unjust motive. That when there is a total want of probable cause, malice may, in some cases, be presumed, or very slight evidence of malice will suEce ; as in case where the accused party is promptly discharged by the magis; trate without being put to the calling of any witnesses. This presumption may, however, be rebutted by showing that the prosecution was instituted and carried on in good faith, and for justifiable ends. That when the advice of counsel is alone relied upon to show the absence of malice, it must appear that such advice was given before the prosecution, upon a fair and full statement of the facts, and that the defendants believed those facts to exist, and the advice given to be correct. The judge further charged that the verdict in this case might be against all or any of the defendants, but that the jury could find but one verdict for the plaintiff; and against whatever parties they found a verdict, it could only be against such as they should find acting together in one or more unfounded and malicious charge or charges. That the grounds of their verdict must affect all such defendants acting together. That the plaintiff could have brought a separate suit against each or any of the parties, but having elected to bring one action against all, he could succeed only against such as he could unite by his proof in one or more charges in which such parties acted together maliciously, and without reasonable or probable cause, •and by combination against him. That if the jury should find one -cause of action against some, not implicating the others, they could not find a verdict on that cause of action without acquitting all the others, although some of the others might be liable for the unwarranted institution of the other charges. That the next question was as to damages ; and that if they should find for the plaintiff, they might of course allow him a compensation for his loss of time while under arrest and prosecution, for his expenses, including expenses of defence, and all such damages as were direct and immediate. That the main ground of damages, however, in such an action, is injury to the feelings and character of the plaintiff. That if the plaintiff only recovers for a false and malicious prosecution of a complaint for misdemeanor, or on a prosecution for an offence less than felony, his damages should not be so high as if he recovered for a false and malicious charge of felony. That if he recovered for the complaint of Lynch, or on the charge of concealing Andros, or on the charge of counterfeiting, as these were felonies, he would be entitled to heavier damages than if he recovered for the prosecutions against him for misdemeanors. That it was contended that the plaintiff’s character was bad ; and on this point evidence had been given on both sides, and was before the jury. But if they should find a malicious prosecution for a felony, without any reasonable or probable cause for its institution, and that the plaintiff’s character was. fair, he was entitled to exemplary damages. The counsel for the defendants excepted to so much of said charge as ruled that just and reasonable cause of suspicion, unaccompanied by proof from which the jury might infer that the party relied in good faith upon it, in making his complaint, was not sufficient probable cause. Also to so much of the said charge as deprived the defendants of the benefit of any facts proved by them to establish probable cause, except such as were shown to have been known to them, or had been communicated to them at the time of the complaint. The defendants’ counsel also requested the court to charge the jury that probable cause was-the existence of such facts and circumstances as would lead the mind of a reasonable man (not a lawyer), in the exercise of ordinary judgment and caution, to suspect the plaintiff to be guilty, or to conclude that the question of his guilt or innocence ought "to be investigated. The court declined to charge in these words, having charged on this point as before stated, and the defendants’ counsel excepted. The defendants’ counsel also requested the court to charge that a less amount of evidence than would be requisite to establish a primé facie case of guilt, would be sufficient to establish probable cause. The court declined so to charge, and the defendants' counsel excepted. The defendants’ counsel also requested the court to charge that if probable cause in point of fact existed at the time of the arrest, it was not incumbent on the defendants to show that they at the time knew and could testify to the facts, or knew the witnesses or proofs to establish them; the existence of probable cause, in fact, is a sufficient justification. The said justice then stated that he. had very fully charged on that subject before, and that he could only add to what he had before stated, that probable cause in fact accompanied by evidence or circumstances from which the jury might infer that the defendants knew it, or were informed of it, and acted upon "it, would constitute a good defence, to which the defendants’ counsel excepted. The defendants’ counsel also requested the court to charge that the bad character of the plaintiff, if proved to the satisfaction of the jury, was to be taken into consideration whether there was probable cause, as a man of bad character may be reasonably suspected upon slighter grounds than a man of good character. The court declined so to charge, and the defendants' counsel excepted. The defendants’ counsel also requested the court to charge that if the plaintiff was prosecuted on several charges of felony, and probable cause "for prosecution. on any of these charges was established, it was a bar to the whole action for malicious prosecution. The court declined so to charge, and the defendants’ counsel excepted. ■The defendants’ counsel also requested the court to charge that as the defendants were charged with a conspiracy, which is an Indictable offence, involving moral turpitude, this action could not be maintained, except upon sufficient evidence to convict the defendants of the crime of conspiracy. The court declined so to charge, and the defendants’ counsel excepted. The jury retired under the charge of the court, and rendered ■a verdict of guilty against the defendants—Henry Shelden, •James Freeland, William S. Pierson, Michael Lynch, Smith ■Cram, and Theodore G-. Cowles, with $5000 damages and 6 'cents costs ; and of not 'guilty as to the remaining defendants, Henry B. Cowles, William Coit; George W. Norris, Stephen •Lounsberry, and Lawrence Mahon.