Bechel v. Pac. Exp. Co.

• Decision Date: 09 October 1902
• Citation: 91 N.W. 853,65 Neb. 826
• Parties: BECHEL v. PACIFIC EXP. CO.
• Court: Nebraska Supreme Court

65 Neb. 826

91 N.W. 853

BECHEL

v.PACIFIC EXP. CO.

Supreme Court of Nebraska.

Oct. 9, 1902.

Syllabus by the Court.

1. The decision of an examining magistrate in binding over to the district court a person accused of felony is prima facie evidence of probable cause for the prosecution, but is not conclusive.

2. In an action for malicious prosecution, where there is sufficient in undisputed evidence to show probable cause, the trial court should direct a verdict for the defendant.

3. A person who suspects another of having committed an offense is bound to verify his suspicions by such inquiry as reasonable care and prudence would suggest under the circumstances of the particular case, before beginning a prosecution.

4. Such person need not, as a general rule, call upon the person suspected to give an explanation, especially where there is no reason to believe that such explanation would materially alter the opinion produced by information already acquired.

Commissioners' opinion. Department No. 2. Error to district court, Douglas county; Estelle, Judge.

Action by William F. Bechel against the Pacific Express Company for malicious prosecution. There was judgment for defendant, and plaintiff brings error. Affirmed.Connell & Ives and Edgar H. Scott, for plaintiff in error.

W. W. Morsman, for defendant in error.

POUND, C.

This is an action for malicious prosecution. The district court, after a trial lasting three weeks, directed a verdict for the defendant; and plaintiff brings error from a judgment on the verdict so directed. The chief question raised is whether there was probable cause for the prosecution. In determining this question, we have been compelled to undertake a protracted and laborious examination of an unusually voluminous and involved record. But we do not think any useful purpose would be subserved by a detailed statement of the numerous and intricate transactions out of which the prosecution arose. Nor do we think it would be just to Mr. Bechel, who has been acquitted of the charge, to set forth at length a necessarily one-sided account of the facts and circumstances which were known to the prosecuting witnesses, and operated to bring about the prosecution. The question now is not whether he was guilty, but whether those who charged him with the offense which had undoubtedly been committed, at the time and under all the circumstances, had probable cause to believe him guilty. After a careful review of the evidence, none of us have any doubt on this score.

It has been urged that the decision of the county judge in binding the plaintiff over to the district court on two separate occasions, after two separate hearings, is conclusive that there was probable cause for the prosecution. This contention is not without support from respectable authorities. But we think the better rule is that the decision of an examining magistrate in binding over to the district court a person accused of felony is prima facie evidence of probable cause only. It is not conclusive. Of course, there is room for a distinction between cases where a magistrate has a power of commitment only, and those in which, as in our practice, the magistrate must adjudge whether there is probable cause. But we do not think this preliminary adjudication of that question should be held conclusive. Its purpose is merely to determine whether the prosecution shall proceed. Its force as evidence may be considerable. Unless impeached by showing of fraud, collusion, or perjury, or a gross misapprehension of law by the magistrate, it may be convincing. Yet we do not think that the plaintiff should be limited to some such attack upon the proceeding directly, but that it should be treated as prima facie evidence only, and that want of probable cause may be established notwithstanding, by any form of competent and sufficient proof. Such is the view taken by the weight of authority. Ross v. Hixon, 46 Kan. 550, 26 Pac. 955, 12 L. R. A. 760, 26 Am. St. Rep. 123; 19 Am. & Eng. Enc. Law (2d Ed.) 664. Moreover, this court has held that even a conviction is not, of necessity, conclusive. Nehr v. Dobbs, 47 Neb. 863, 66 N. W. 864; Marynard v. Sigman (decided July 22, 1902), 91 N. W. 576.

Granting, however, that want of probable cause may be shown notwithstanding commitment by the examining magistrate, whether the facts adduced to that end show or fail to show want of probable cause is a question for the court. If there is sufficient in undisputed evidence to show probable cause for the prosecution, the trial court should direct a verdict for the defendant. Dreyfus v. Aul, 29 Neb. 191, 45 N. W. 282;Turner v. O'Brien, 11 Neb. 108, 7 N. W. 850. It cannot matter that some or many of the facts bearing on the issue as to probable cause are in dispute, if there are still enough established and undisputed to determine the question in point of law. The facts being determined, the question is one for the court; and, if there are enough on which to base a determination without leaving anything that may be in dispute to the jury, there is nothing for the jury to pass upon. We are unanimously of opinion that such is the situation in the case at bar. The strongest point made on behalf of plaintiff...