When the general issue is pleaded to an action on the case for a
malicious criminal prosecution, the plaintiff must prove, in the
first place, the fact of the prosecution, that the defendant was
himself the prosecutor, or instigated the proceeding, and that it
finally terminated in favor of the party accused.
He must also prove that the charge against him was unfounded,
that it was made without reasonable or probable cause, and that the
defendant, in making or instigating it, was actuated by malice.
Page 65 U. S. 545
Probable cause is the existence of such facts and circumstances
as would excite the belief in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted.
Where the court told the jury that the want of probable cause
afforded a presumption of malice, but that such presumption might
be rebutted by other evidence showing that the party acted
bona
fide and in the honest discharge of what he believed to be his
duty, it was not error in the court to add, in the same connection,
that if, however, the jury find that the arrest was wanton and
reckless, and that no circumstances existed to induce a reasonable
and dispassionate man to believe that he was guilty of the charge
preferred against him, then the jury ought to infer malice, except,
perhaps, the closing paragraph is put rather strongly in favor of
the plaintiff.
Whether the prosecution was or was not commenced from malicious
motives was a question of fact, and it was for the jury to
determine whether the inference of malice was a reasonable one from
the facts assumed in the instruction; but the error, if it be one,
forms no ground o� exception by the plaintiff, because it was in
his favor.
As the magistrate who issued the warrant was one of the parties
sued in this case, it was proper for the court below to instruct
the jury that if there was probable cause for the arrest of the
party, he could lawfully be detained for a reasonable time, owing
to the neglect on his part to offer any satisfactory security for
his appearance at the time appointed for examination.
In September, 1856, John J. Wheeler arrived at the small town of
Charlotte, in Tennessee, about eight o'clock at night, in company
with two Irishmen, the whole three being indifferently clad.
Wheeler had four fine horses; each of the Irishmen was riding one
of the horses, with a sack and blanket to sit upon instead of a
saddle. The defendants in error except Trimble arrested the whole
three on suspicion of having stolen the horses, and carried them
before Trimble, who was a justice of the peace, and who sent them
to jail for a week. At the end of that time, they procured
satisfactory evidence of character, and were discharged. Wheeler
then brought an action on the case for a malicious criminal
prosecution. The rulings of the court below are given in the
opinion of this Court.
Page 65 U. S. 546
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
John J. Wheeler, the plaintiff in error, complained in the court
below against the present defendants in a plea of trespass on the
case, as will more fully appear by reference to the declaration
which is set forth at large in the transcript. It alleged three
distinct causes of action, and each cause of action was set forth
in two separate counts. All of the counts, however, were founded
upon the same transaction, so that a brief reference to the first,
third, and fifth of the series will be sufficient to exhibit the
substance of the declaration, and the nature of the supposed
grievances for which the suit was instituted. First, the plaintiff
alleged that the defendants, falsely and maliciously contriving and
intending to injure him in his good name and reputation, on the
eighteenth day of September, 1856, at a certain place within the
jurisdiction of the court below, went before a certain justice of
the peace for that county, and falsely and maliciously, and without
any reasonable or probable cause, charged the plaintiff with having
feloniously stolen four horses, which he then and there had in his
possession, and caused and procured the magistrate to grant a
warrant, under his hand and seal, for the apprehension of the
plaintiff, upon that false, malicious, and groundless charge, and
that he, the plaintiff, was accordingly arrested by virtue of the
warrant so procured, and falsely and maliciously, and without any
reasonable or probable cause, imprisoned in the prison house of the
state there situate for the space of seven days, and that at the
expiration of that period he was fully acquitted and discharged of
the supposed offense, and that the prosecution for the same was
wholly ended and determined.
Secondly, the plaintiff alleged that the defendants, on the same
day and at the same place, with force and arms assaulted him the
plaintiff, and forced and compelled him to go to the prison house
of the state there
Page 65 U. S. 547
situate, and then and there falsely and maliciously, and without
any reasonable or probable cause, imprisoned him for the space of
seven days, contrary to the laws and customs of the state.
Thirdly, the plaintiff alleged that the defendants, on the same
day and at the same place, did unlawfully and falsely conspire,
combine, and agree among themselves and with others, that the
first-named defendant, with a view to procure a warrant for the
arrest and imprisonment of the plaintiff, should go before a
certain magistrate of the county, and make oath, according to law,
that he, the complainant, verily believed that the plaintiff, with
two other persons, had committed the aforesaid offense, and that
the other defendants in this suit should attend the preliminary
examination of the plaintiff before the magistrate, and then and
there aid, abet, and assist the complainant, by their testimony,
influence, and advice, in prosecuting the charge, and the plaintiff
averred that the defendants so far carried their corrupt and evil
conspiracy and agreement into effect, that they procured the
warrant from the magistrate by the means contemplated, and that he,
the plaintiff, was then and there arrested by virtue of the same,
and imprisoned upon that false, malicious, and groundless
accusation for the space of seven days, and that at the expiration
of that period he was fully acquitted and discharged of the
supposed offense.
Such is the substance of the declaration, so far as it is deemed
material to reproduce it at the present time. Testimony was
introduced by the plaintiff tending to show that he was the lawful
owner of the four horses described in the warrant on which he was
arrested, and he also proved, without objection, that he had always
sustained a good character in the neighborhood where he resided. He
also introduced a duly certified copy of the complaint made against
him by the first-named defendant, and a duly certified copy of the
warrant issued by the magistrate. Those copies show that the
complainant, on the eighteenth day of August, 1856, made the
accusation under oath, as required by the law of the state, and
that the magistrate thereupon granted the warrant for the
apprehension of the plaintiff, together with two other persons, who
were jointly accused with him of the same offense.
Both
Page 65 U. S. 548
the complaint and warrant were in regular form, and the latter
contained the usual directions, that the persons accused should
forthwith be brought before the magistrate who issued it, or some
other justice of the peace for the county, to answer to the charge,
and be dealt with as the law directed. Whether the officer made any
formal return on the precept or not does not appear; but it is
stated in the bill of exceptions that the warrant was placed in the
hands of the sheriff, and that the persons accused of the offense,
including the plaintiff, were on the same day brought before the
magistrate for trial. When brought into court they were not
prepared for the examination, and at their request the trial was
postponed for twelve days, or until they should have sufficient
time to procure the attendance of certain witnesses, whose
testimony was necessary, as they represented, to establish their
defense; and the minutes of the proceedings before the magistrate
state, in effect, that the accused, "not being able to give any
security for their appearance" at the time appointed for the trial,
"or not offering to give any, the sheriff was directed to hold them
in custody to answer to the charge."
Pursuant to that order, the plaintiff, as well as the other
persons accused, remained in the custody of the sheriff, and were
kept by him in the prison house of the state there situate until
the witnesses of the plaintiff appeared, and on the twenty-fifth
day of September, 1856, they were again brought before the
magistrate, and after the witnesses on both sides were examined,
all of the accused were fully acquitted and discharged of the
alleged offense. To show that the prosecution was groundless, and
without any reasonable or probable cause, the plaintiff examined
several witnesses to prove the circumstances under which he was
arrested, and the substance of the evidence adduced against him at
the trial before the magistrate. One of the defendants is the
magistrate who granted the warrant, and the other defendants were
witnesses for the state in the criminal prosecution. All of the
defendants were citizens of the State of Tennessee, and the
plaintiff was a citizen of the State of Kentucky, and it did not
appear that the parties had any acquaintance with each other prior
to this transaction. No attempt was made
Page 65 U. S. 549
on the part of the plaintiff to prove express malice, and there
was no direct evidence of any kind to support the allegation of
conspiracy. On the other hand, the defendants insisted that there
was no evidence to support the charge of conspiracy or of false
imprisonment, and that the prosecution was instituted in good faith
and conducted throughout upon reasonable and probable cause, and to
establish that defense they called and examined several witnesses
to prove what the evidence was which was given against the
plaintiff at the trial before the magistrate. Without entering into
particulars, it will be sufficient to say that the evidence adduced
by the defendants had some tendency to maintain the defense. Under
the rulings and instructions of the court the jury returned their
verdict in favor of the defendants, and the plaintiff excepted to
the charge of the court. Unaided by the assignment of errors, it
would be difficult to ascertain, with any degree of certainty, to
what particular part of the charge of the court the exceptions were
intended to apply. But that difficulty is so far obviated by the
specifications contained in the printed argument filed for the
plaintiff, that with some hesitation we have concluded that the
case, as presented in the transcript, is one which may be
reexamined in this Court.
1. Among other things, the presiding justice instructed the jury
that in order to excuse the defendants on the first two counts in
the declaration, it must appear that they had probable cause for
the prosecution of the plaintiff for the offense described in the
complaint and warrant, or that they acted
bona fide
without malice. Objection is made by the counsel of the plaintiff
to this part of the charge of the court; but we think it was quite
as favorable to him as the well settled rules of law upon the
subject would possibly allow. To support an action for a malicious
criminal prosecution the plaintiff must prove, in the first place,
the face of prosecution, and that the defendant was himself the
prosecutor, or that he instigated its commencement, and that it
finally terminated in his acquittal. He must also prove that the
charge preferred against him was unfounded, and that it was made
without reasonable or probable cause, and that the defendant in
making or instigating it
Page 65 U. S. 550
was actuated by malice. Proof of these several facts is
indispensable to support the declaration, and clearly the burden of
proof in the first instance is upon the plaintiff to make out his
case, and if he fails to do so in anyone of these particulars, the
defendant has no occasion to offer any evidence in his defense.
Undoubtedly, every person who puts the criminal law in force
maliciously, and without any reasonable or probable cause, commits
a wrongful act; and if the accused is thereby prejudiced, either in
his person or property, the injury and loss so sustained constitute
the proper foundation of an action to recover compensation. Malice
alone, however, is not sufficient to sustain the action, because a
person actuated by the plainest malice may nevertheless prefer a
well founded accusation, and have a justifiable reason for the
prosecution of the charge. Want of reasonable and probable cause is
as much an element in the action for a malicious criminal
prosecution as the evil motive which prompted the prosecutor to
make the accusation, and though the averment is a negative one in
its form and character, it is nevertheless a material element of
the action, and must be proved by the plaintiff by some affirmative
evidence, unless the defendant dispenses with such proof by
pleading singly the truth of the several facts involved in the
charge.
Morris v. Corson, 7 Cow. 281. Either of these
allegations may be proved by circumstances, and it is
unquestionably true that want of probable cause is evidence of
malice, but it is not the same thing; and unless it is shown that
both concurred in the prosecution, or that the one was combined
with the other in making or instigating the charge, the plaintiff
is not entitled to recover in an action of this description. Add.
on W. and R. Accordingly, it was held in
Foshay v.
Ferguson, 4 Den. 619, that even proof of express malice was
not enough without showing also the want of probable cause; and the
court went on to say that however innocent the plaintiff may have
been of the crime laid to his charge, it is enough for the
defendant to show that he had reasonable grounds for believing him
guilty at the time the charge was made. Similar views were also
expressed in
Stone v. Crocker, 24 Pick. 83. There are two
things, said the court in that case,
Page 65 U. S. 551
which are not only indispensable to the support of the action,
but lie at the foundation of it. The plaintiff must show that the
defendant acted from
malicious motives in prosecuting him,
and that he had
no sufficient reason to believe him to be
guilty. If either of these be wanting, the action must fail, and so
are all the authorities from a very early period to the present
time.
Golding v. Crowle, Sayer 1;
Farmer v.
Darling, 4 Burr 1,974; 1 Hillard on T. 460.
It is true, as before remarked, that want of probable cause is
evidence of malice for the consideration of the jury; but the
converse of the proposition cannot be sustained. Nothing will meet
the exigencies of the case, so far as respects the allegation that
probable cause was wanting, except proof of the fact; and the
onus probandi, as was well remarked in the case last
referred to, is upon the plaintiff to prove affirmatively, by
circumstances or otherwise, as he may be able, that the defendant
had no reasonable ground for commencing the prosecution.
Purcell v. McNamara, 9 East. 361;
Willans v.
Taylor, 6 Bing. 184;
Johnstone v. Sutton, 1 Term 544;
Add. on W. and 435;
Turner v. Ambler, 10 Q.B. 257.
Applying these principles to the present case, it necessarily
follows that so much of the charge of the court as is now under
consideration furnishes no just ground of complaint on the part of
the plaintiff. On the contrary, it is quite obvious that unless it
was accompanied by prior explanations, not stated in the bill of
exceptions, it was even more favorable to the plaintiff than he had
a right to expect. He was bound to make out his case, and if it did
not appear that the prosecution had been commenced with malicious
motives, and without reasonable and probable cause, then the
plaintiff was not entitled to a verdict.
Mitchel v.
Jenkins, 5 Barn. & Adol. 594.
2. With these remarks as to the first ground of complaint, we
will proceed to the examination of the second, which is also based
upon a detached portion of the charge of the court. After stating
the alternative proposition already recited, the presiding justice
proceeded to define the term, probable cause. He substantially told
the jury that probable cause was the
Page 65 U. S. 552
existence of such facts and circumstances as would excite the
belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted.
Having thus defined the meaning of the term probable cause, he
then proceeded to say that the want of probable cause afforded a
presumption of malice, but that such presumption might be rebutted
by other evidence, showing that the party acted
bona fide,
and in the honest discharge of what he believed to be his duty, and
then gave the instruction to which the second objection applies. It
is as follows:
"If, however, the jury find that the arrest was wanton and
reckless, and that no circumstances existed to induce a reasonable,
dispassionate man to believe that the defendant was guilty of
having stolen the horses he had in his possession, then the jury
ought to infer malice."
Clearly, this part of the charge must be taken in connection
with what preceded it, and when so read and understood, it is
impossible to hold that it is incorrect, except, perhaps, the
closing paragraph is put rather strongly in favor of the plaintiff.
Whether the prosecution was or was not commenced from malicious
motives, was a question of fact, and it was for the jury to
determine whether the inference of malice was a reasonable one from
the facts assumed in the instruction. Be that as it may, it is
quite certain that it furnishes no ground of exception to the
plaintiff, and in all other respects we hold the instruction to be
correct.
3. One other objection only remains to be considered. After
stating the fact that the magistrate who issued the warrant was
sued as a joint defendant, the presiding justice told the jury that
the warrant, as given in evidence, was in due form, and that the
presumption was, from the statements found therein, that there was
sufficient evidence before the magistrate to authorize him to issue
it; and then follows that portion of the instructions to which the
third objection applies. He then told the jury that if there was
probable cause for the arrest of the defendant, he could be
lawfully detained a reasonable time till the warrant was issued and
executed. It is insisted by the plaintiff that this instruction was
both abstract
Page 65 U. S. 553
and misleading. But that theory is wholly without support from
anything that appears in the record, and, in point of fact, is
directly contradicted by what does appear. To sustain that remark
it is only necessary to refer to the declaration, where it is
alleged that the plaintiff was detained in prison for the space of
seven days, and the minutes of the proceedings before the
magistrate show that he was so detained as the necessary
consequence of his own request for delay, and the neglect on his
part to offer any satisfactory security for his appearance at the
time appointed for the examination. Those minutes were introduced
by the plaintiff; and in the absence of any proof to the contrary,
it must be assumed that they speak the truth. In view of the whole
case, we think the charge of the court to the jury was correct, and
that there was no error in the record. The judgment of the circuit
court is therefore
Affirmed, with costs.