Baker v. Hornik

• Decision Date: 05 April 1900
• Citation: Baker v. Hornik, 57 S.C. 213, 35 S.E. 524 (S.C. 1900)
• Parties: BAKER v. HORNIK et al.
• Court: South Carolina Supreme Court

35 S.E. 524

57 S.C. 213

BAKER v. HORNIK et al.

Supreme Court of South Carolina

April 5, 1900

Appeal from common pleas circuit court of Charleston county; W. C Benet, Judge.

Action by Henry Baker against M. Hornik and another.From a judgment for defendants, plaintiff appeals.Affirmed.

The court below, at folios 54 to 94, charged the jury as follows:

"In an action of this character, gentlemen, malice is the principal element.The ground of the complaint is an alleged malicious prosecution, and such an action may be brought to recover damages sustained by the plaintiff by reason of his having been prosecuted for some crime or offense by a defendant, or at the instance of the defendant from malicious motives, and without probable cause.There are three essentials which must concur before a malicious prosecution can be successfully maintained, and I ask your close attention to these three, that you may apply them as tests to the evidence in this case, and decide whether or not the plaintiff has made out his case; and upon all three the burden of proof is upon the plaintiff to establish each of the three, and all three, by the preponderance of the evidence,--by the greater weight of the testimony,--so that the jury will be satisfied that each of the three has been proved: First, it must be affirmatively shown that the plaintiff was prosecuted through malicious motives; second, that the prosecution was without probable cause; and, third, that the prosecution had ended, either by an acquittal or a judgment in the plaintiff's favor before the commencement of the action for damages, or that the prosecution had been abandoned and the cause dismissed before the commencement of the action for damages.You will bear in mind that the burden of proof is upon the plaintiff to establish these three requisites as facts,--not merely to establish one of them, or two of them, but all three; and should he fail to satisfy the jury as to one of them, he could not and should not get a verdict, and the defendants would prevail.It is important, therefore, that the jury should clearly understand what is meant by 'malice,' in what is called a 'malicious prosecution,' and also to know what is meant by 'want of probable cause,' and to have a clear idea of what is meant, in law, as a 'termination of the prosecution,' or an 'abandonment of the prosecution'; and I shall endeavor to make these three essential requisites clear to you:

First, then, as to malice.As technically used in legal definitions, malice is by no means the same as malice spoken of in common conversation, which usually means simply ill will, hatred, animosity, or some similar feeling.A man may prosecute another with the bitterest animosity, the fiercest hatred, a most violent ill will, and yet be entirely free from the malice without which there can be no malicious prosecution, because malice in law is not simply a rancor of the mind.Envy, hatred and malice are separate and distinct passions, and the worst of these is malice, because--and now mark my words--it is a deliberate purpose to do an injury to some person without just cause or excuse.I repeat it: Malice in law is the deliberate purpose to injure another without just cause or excuse.It means the willing act of an evil mind,--the intention to wrong another unjustly.It implies the making up of the mind to do evil to some one.Therefore any indirect motive of wrong is a malicious motive.For example, if one sets the criminal law in motion against another, not for the purpose of bringing that other to justice for the violation of some law, but for the purpose, for instance, of aiding the prosecutor to collect a debt, a jury might well consider that that was evidence of a malicious motive, because the criminal law was not designed to aid creditors in the enforcement of payment of debts; and he who sets the criminal law in motion for such a purpose should smart for it, and in a proper case would be made to smart for it.I trust you clearly understand now what is meant by the malice which must be present as the motive in a malicious prosecution.That malice or malicious motive must be proved to the satisfaction of the jury by the greater weight of the testimony.It is not necessary that malice be expressly shown,--for instance, by proof of threats or the like.Malice may be implied.It may be inferred from circumstances.For example, malice may be inferred in a prosecution if the prosecution is one without probable cause.If a jury are satisfied from the testimony that the prosecution was wholly without cause, or without probable cause, they may infer, and justly infer, that it was prompted by malice.That would be a presumption or inference; being merely a presumption, may be removed and made to disappear from the case by sufficient and competent testimony showing that even without probable cause there was no evil intention no deliberate purpose to do wrong, no malice.It may have been on misinformation.But, nothing else appearing, the want of probable cause would justify an inference of malicious intent,--malicious motive.It is, of course, impossible to formulate and lay down any general rule, any rigid test, by which the question of what constitutes malice in a prosecutor may be determined.The question arises in each case, and must be decided by the circumstances in each individual case; and you alone can determine from the testimony in this case whether there was malice in the alleged prosecution, and you must determine that according to the testimony in the case.You alone can decide whether there was or was not malice in the alleged prosecution.But it is safe to say, and I so charge you, that the facts from which malice is found, the evidence by which malice is proved, must be such as to satisfy any reasonable man that the prosecutor had no ground for the prosecution, except his evil desire to injure the accused.

So much, then, for malice.We now come to the second requisite in a malicious prosecution; that is, want of probable cause.And I charge you that probable cause is such a state of facts and circumstances present in the mind of the prosecutor at the time of issuing warrant as to lead a man of ordinary intelligence and caution and prudence, acting conscientiously, fairly, and without prejudice, upon the facts as he believes them, or as he believes he knows them, to believe the person accused to be guilty.Probable cause, therefore, is something more than merely ground for suspicion, or even reasonable ground for suspicion.In addition to that there must be such an appearance of facts and circumstances as would warrant and justify a man of ordinary intelligence and caution and prudence in believing that the person accused was guilty of the offense or crime charged.Probable cause, I would say by way of illustration, is the measure of proof which justifies a grand jury in finding a true bill.That is to say, the existence, or the seeming existence, of such facts and circumstances as, nothing else appearing, would warrant a reasonable man and a prudent man in believing that the person accused was guilty, and should be tried.The state is bound to furnish a grand jury with probable cause, before that jury can find a true bill against a man.It does not mean that they try the man and find him guilty, but they simply say, 'If this evidence be true,'--and only one side is heard, the state's side,--'If this evidence be true, this man should be tried; upon these facts, he must be guilty, if they be true.'That furnishes probable cause.I have already said that the want of probable cause is an essential element in a malicious prosecution, and the plaintiff, therefore, is bound to prove that there was no probable cause for the prosecution.That looks like requiring him to prove a negative, which is supposed to be, in logic, a very difficult thing to do.It is almost equivalent to asking a plaintiff to prove that he was innocent of the charge, and the law does not usually require a man to prove his innocence, but on the civil side of the court, when he alleges that he has been prosecuted from malicious motives, and that there was no ground for the prosecution, he must prove that there was a want of probable cause,--that the prosecution was without probable cause.It must be borne in mind, gentlemen, that proof of malice, no matter how strong or complete or convincing, cannot take the place of proof of want of probable cause.Clear and satisfactory proof of malice will not supply the lack of proof of want of probable cause.And note this, also, gentlemen: Want of probable cause must not be inferred or implied from proof of malice, although, as I have already charged you, malice may be inferred from the want of probable cause.One who accuses another of crime may act upon appearances, and if the facts, or what seem to him to be the facts, are such that a man of ordinary intelligence and caution and prudence, acting conscientiously and without prejudice, would, under the circumstances, be led to believe, or be warranted in believing, that the person accused was guilty, the accuser or prosecutor will be justified in such prosecution, even though the appearances had misled him, although they were in fact no just ground for prosecution.Because one may be deceived or misled by appearances, but if he has acted only under the effect of such misleading or deception, and even though the accused was innocent, the accuser in such a case could not be justly held liable for damages for malicious prosecution, having acted upon appearances, and honestly acted upon appearances.But a prosecution based upon mere conjecture or suspicion, or groundless suspicion, would justly render a prosecutor liable for damages, because there must be

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