Blunk v. Atchison, T. & S.F.R. Co.

• Decision Date: 14 March 1889
• Citation: 38 F. 311
• Parties: BLUNK v. ATCHISON, T. & S.F.R. CO.
• Court: U.S. District Court — Western District of Missouri

38 F. 311

BLUNK v. ATCHISON, T. & S.F.R. CO.

United States Circuit Court, W.D. Missouri, Western Division.

March 14, 1889

Robinson & Harkless, for plaintiff.

Geo. W McCrary and Gardener Lathrop, for defendant.

BREWER J., (orally charging jury.)

The case, which has been tried before you with very full detail of facts, is one of importance, not merely to the parties involved here, but also to the general public, and by reason of that fact it deserves at your hands the most careful consideration. Both sides have presented the testimony fully and fairly; and it certainly is a pleasure to try a case when it is tried, as this has been, so well, and so pleasantly, by counsel. At the very outset I want to notice and comment for a moment upon an obvious infirmity in our laws--at least, so it strikes me. One of you is entirely innocent of crime. Some one files a complaint; causes your arrest; you are tried and acquitted. In making your defense you have spent time and money; possibly have been incarcerated in jail; and yet, after your perfect vindication, by a jury of your countrymen, there is no provision for any compensation to you for the time and money that you have lost. Now, as I have often had occasion to say I think that this is an injustice; but it is an injustice that we cannot remedy--only the legislature can. The only remedy which a party may have, in a case where he has been unjustly charged with a crime, is when the prosecution is one which comes within the legal definition of a malicious prosecution; and then he can recover from the prosecutor fair and reasonable damages.

In this case I may have occasion to comment upon the testimony somewhat, and I may express an opinion as to the effect of this or that portion of testimony, or as to the proof of this or that fact. If I do so, I want to say at the outset that my opinion upon a question of fact does not control. You are to decide all questions of fact. And I want to say another thing, too, and that is, that we are to try this case upon the testimony that we have, and not upon that which might have been, or that we guess might have been, offered. If a witness known to have some connection with the circumstance of this case is not present, you may not guess that he would have testified so and so if he were present. Our inquiry is limited to the testimony that we have, and we cannot speculate upon what might have been.

I observe again that we are not here to try the question of the guilt or innocence of this plaintiff of the train robbery and murder at Coolidge. That is not the question before us. If it were, I think I should have no hesitation in saying that conceding all that you may in reference to suspicions, there are no sufficient facts before you that would justify you in saying that he was connected with that robbery. I observe again that the proceedings which were initiated by the complaint filed before the justice of the peace, followed up by the requisition and information, are at an end. That prosecution is finished. Again, if not conceded, it is, I think, a fact beyond dispute from the testimony that the prosecution of this plaintiff, Blunk, was initiated by the defendant railroad company. It caused, practically, those proceedings to be commenced and prosecuted. And in that respect I may also observe that when a crime like the attempted robbery of the train at Coolidge, and the murder of the engineer and the wounding of the fireman, has been committed, then common decency and every man's sense of justice demands that the company whose property has thus been threatened, and whose employe has thus been killed, should make every fair and reasonable effort to bring the criminal or criminals to justice; and that it is not to be taken as any evidence of misconduct on the part of the railroad company that it has used its employes and spent its money in an effort to ferret out and bring to justice the criminals. Every man, for that matter, owes a duty to society to do what he can to ferret out and punish crime; and when the relations exist that existed between this defendant and the man who was killed, there is a more imperative duty on it to do what it can in that direction. While that is true, of course it also is true that in prosecuting its inquiries and making its efforts it is not at liberty to act wantonly, to act with malice, to act in disregard of the rights of others. All that it may do,-- and it is that which it ought to do,-- is to make fair and reasonable efforts to ferret out and prosecute the criminals.

It being, therefore, not a question of whether that prosecution is ended, nor a question whether this plaintiff was guilty of the crime charged in that prosecution, the inquiry naturally arises, what is this case, and what is it that you are to try? In the technical language of the law, this is a case in which the defendant is charged to have maliciously prosecuted this plaintiff-- 'maliciously prosecuted;' and the elements of the case, as well settled, are--First, it must appear that there was no probable cause existing at the time of the commencement of the prosecution for its commencement and, secondly, that it was a prosecution with malice. Those are the two ingredients. As frequently stated, there must be a want of probable cause, and there must be malice. Those are the questions you are to try-- whether in this prosecution this railroad was actuated by malice towards this plaintiff, and acted without any probable cause to believe him guilty. The question of what constitutes probable cause is a question for the court to settle. What the facts are the jury are to determine; but what constitutes probable cause is for the court to determine. It appears in this case that, without any solicitation or any suggestion from the defendant, news was communicated to the officers of the company that a convict in the Missouri penitentiary knew something about the Coolidge train robbery, and was ready to confess. On the strength of that information the ordinary officer of the defendant proceeded to the Missouri penitentiary, and interviewed that convict. From him he got a statement in writing, written partly by the agent of the company and partly by the convict. That statement, according to the testimony, was a confession of his own-- that is, the convict's own-- connection with the crime. More than that, it detailed the circumstances immediately preceding and subsequent to the crime; named the three parties engaged in it, and detailed some preliminary matters, then mapped out their course of travel to Coolidge and return, giving individual facts connected therewith. Now, I say to you that if a reputable citizen-- if one of you, or any man of known integrity-- makes an affidavit in which he details his own knowledge of a crime, and a person acts upon that affidavit, he acts with probable cause in instituting a prosecution for the offense. But where a person like this convict, of confessed criminality,-- confessed both by the adjudication against him and by his own confession in this statement,-- makes a statement in respect to crime, not merely in reference to himself, but implicating others, then...