Mcintire v. Levering

• Decision Date: 28 February 1889
• Citation: 148 Mass. 546,20 N.E. 191
• Parties: MCINTIRE v. LEVERING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 546

20 N.E. 191

MCINTIRE v. LEVERING.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1889

COUNSEL

H.F. Naphen, for plaintiff.

T.J Morrison, for defendant.

OPINION

KNOWLTON J.

There is some conflict of authority as to the competency of evidence of the reputation of the plaintiff in a trial of an action for malicious prosecution. There are many cases in which it is held that in actions of this kind, as in actions of slander, the general bad reputation of the plaintiff may be shown in mitigation of damages. There are also decisions that in suits for malicious prosecution such reputation may be shown to meet the allegation of want of probable cause. Bacon v. Towne, 4 Cush. 241; Pullen v. Glidden, 68 Me 559; Barron v. Mason, 31 Vt. 189; Rodriguez v. Tadmire, 2 Esp. 721; Gregory v. Thomas, 2 Bibb, 286; Bostick v. Rutherford, 4 Hawks, 83; Gregory v. Chambers, 78 Mo. 294; Rosenkrans v. Barker, 115 Ill. 331, 3 N.E. 93. But the cases do not go so far as to permit proof of particular instances of bad conduct. In determining whether there is probable cause for a prosecution for the commission of a crime, the known character or general reputation of the person suspected is always an element of some importance; for, as was said by Chief Justice SHAW in Bacon v. Towne, ubi supra: "The same facts which would raise a strong suspicion in the mind of a cautious and reasonable man against a person of notoriously bad character for honesty and integrity, would make a slighter impression if they tended to throw a charge of guilt upon a man of good reputation." In a suit of this kind, where the prosecution complained of was for an offense implying moral turpitude, the plaintiff's general reputation at the time of the prosecution, if the defendant was where he would be likely to know it, is always involved in the issue, and the defendant may properly be permitted to show that it was bad. We see no good reason why the plaintiff should not be permitted, on the other hand, to show affirmatively that it was good. It is true that every one is presumed to be of good character until the contrary appears, and this presumption ordinarily saves the necessity of proof. Indeed, in civil cases, as a general rule, evidence of reputation is not competent upon a question as to liability for a particular act. But whenever character is in issue the rule is different. One charged with a crime is not obliged to rest upon a presumption of good character. In favorem libertatis he may prove the fact, if he can, by a weight of evidence far more effective than any mere presumption. A plaintiff in a suit for a malicious prosecution upon a criminal charge has the burden of proving that the prosecution was without probable cause. In defending against the prosecution he would have had the right to show his good reputation, although his character was not attacked otherwise than incidentally by the prosecution itself. The same incidental attack upon his character necessarily appears in the suit for the malicious prosecution. To prove that the attack was originally made without probable cause, we think he should be permitted to show his good reputation, known to the defendant when the prosecution was commenced. In several of the states there are adjudications to this effect: Woodworth v. Mills, 61 Wis. 44, 20 N.W. 728; Blizzard v. Hays, 46 Ind. 166; Israel v. Brooks, 23 Ill. 575; Miller v. Brown, 3 Mo. 127; Scott v. Fletcher, 1 Overt. 488.

The defendant's exception to the admission of this kind of evidence must be overruled.

Testimony of statements by Madden and Hewett, to the justice who issued the warrant, made in the absence of the defendant, was rightly excluded. The statements cannot be treated as facts tending to show the plaintiff's guilt, and competent evidence for that purpose, which the defendant may be presumed to have known, even though his knowledge of them is not distinctly shown. See Bacon v. Towne, ubi supra. They are mere declarations of third persons, which...