Brady v. Stiltner

• Decision Date: 30 March 1895
• Citation: 21 S.E. 729,40 W.Va. 289
• Parties: BRADY v. STILTNER.
• Court: West Virginia Supreme Court

21 S.E. 729

40 W.Va. 289

BRADY v. STILTNER.

Supreme Court of Appeals of West Virginia.

March 30, 1895

Submitted January 29, 1895

Syllabus by the Court.

1. The waiver of a preliminary examination by a person charged with crime is prima facie evidence of probable cause.

2. "The discharge by a justice of the plaintiff of one who has been arrested and brought before him for examination or the refusal of the grand jury to indict him is prima facie evidence of want of probable cause but it is liable to be rebutted by proof." When the refusal of the grand jury to indict is opposed to the refusal of the justice to discharge, one rebuts the other, so as to render neither prima facie evidence of the existence or want of probable cause; and, if the plaintiff manages in any way to have the evidence for his defense considered by the grand jury, their finding is tantamount to an acquittal by a petit jury, and is not prima facie evidence of the want of probable cause on the part of the prosecutor.

Error to circuit court, Webster county.

Action by G. L. Brady against F. P. Stiltner for malicious prosecution. Plaintiff had judgment, and defendant brings error. Reversed.

W. E R. Byrne, for plaintiff in error.

DENT J.

This is a case of malicious prosecution of G. L. Brady, plaintiff against F. P. Stiltner, defendant, from the circuit court of Webster county. The facts are as follows, to wit:

In a certain suit between the plaintiff and the defendant the matter in dispute appears to have been whether said defendant agreed to charge 25 cents or 50 cents for the effectual services of a certain animal, each time such animal was used. The plaintiff testified that the defendant agreed with him only to charge him 25 cents. Thereupon the defendant made the necessary affidavit that the plaintiff had sworn falsely, and caused a warrant to issue, on which the plaintiff was arrested, and, being brought before the justice, waived examination on the charge and gave a recognizance for his appearance before the circuit court to answer an indictment. When the grand jury met to inquire of the charge, after the defendant's evidence had been heard, plaintiff had his two sons and attorney sworn and sent before the grand jury to testify regarding the charge. The grand jury failed to find an indictment, and plaintiff was discharged. He then sued the defendant for malicious prosecution, and obtained a judgment for $600. From this judgment a writ of error was granted the defendant, who here relies on the following errors, to wit:

"(1) That the court erred in giving the following three instructions for the plaintiff: 'No 4. The court instructs the jury that if they believe from the evidence that F. P. Stiltner made a complaint before J. A. Howell, justice, accusing defendant, G. L. Brady, with committing perjury, and if the said Brady waived an examination before the justice, and was required to enter into a recognizance to appear before the circuit court to answer an indictment to be preferred against him by the grand jury, and if the said Stiltner appeared before the grand jury as a witness against said Brady, and if the grand jury refused or failed to find an indictment against said Brady for the alleged offense, and he was discharged by the court, it is prima facie evidence of want of probable cause on the part of said Stiltner in making the accusation against said Brady and procuring his arrest, and it throws the burden of proof upon said Stiltner to show that he had probable cause in making the accusation aforesaid, and the jury have the right to infer malice on the part of said Stiltner if it appears that there was want of probable cause.' 'No. 7. The court instructs the jury that what will or will not amount to probable cause will depend upon the circumstances of the case, and the discharge of the plaintiff, Brady, by the grand jury is prima facie evidence of the want of probable cause, and sufficient to throw upon the defendant, Stiltner, the burden of proving the contrary. No. 8. The court instructs the jury that it is the duty of a grand jury to indict a person who is charged with an offense, and recognized to appear before the circuit court to answer an indictment to be preferred against him; and if it appears by the testimony before the grand jury that there is probable cause of the guilt of the person it is the duty of the grand jury to indict him, and, if they fail or refuse to indict, it is prima facie evidence that there was want of probable cause.'

"(2) The court erred in refusing to give the following instructions for the defendant: 'No. 1. The jury is instructed that if they believe from the evidence that the defendant believed, either from facts within his own knowledge or from information derived from others, that the plaintiff made the false statement on oath as stated in the complaint upon which the warrant of arrest was issued by the justice, then the defendant had probable cause upon which to base such complaint, and the jury should find for the defendant. No. 2. The jury is instructed that if they believe from the evidence that the plaintiff was arrested upon a warrant issued upon a complaint made by the defendant, and taken before a justice for examination, and that the plaintiff waived such examination, and entered into a recognizance to answer an indictment upon the matter charged in said complaint, then such waiver is prima facie evidence that there was at least probable cause sufficient to justify the defendant in making the said complaint.' 'No. 4. The jury is instructed that if they believe from the evidence in this case that there was probable cause sufficient to warrant the justice in holding the plaintiff to answer an indictment, then it is immaterial whether the grand jury found such indictment or not, or whether or not there was evidence sufficient to warrant the grand jury in finding such indictment.' 'No. 8. If the jury believe from the evidence that the plaintiff or his attorney went before the grand jury, or sent any witness or witnesses before the grand jury, to prevent the finding of an indictment against the plaintiff upon the charge set forth in the declaration, that is a circumstance bearing upon the question of probable cause proper to be considered by the jury."'

The real question involved is whether the defendant had probable cause to justify him in his prosecution of the plaintiff for perjury. "Probable cause" is a question of law, to be determined from the facts proven, and is defined, in the case of Vinal v. Core, 18 W.Va. 2, to be "a state of facts actually existing known to the prosecutor personally, or by information derived from others," "which, in the judgment of the court, would lead a reasonable man of ordinary caution, acting conscientiously upon these facts, to believe the party guilty." The proof of want of probable cause is with the plaintiff, but any evidence sufficient to raise a prima facie case is all that is required to overcome the weak presumption of its existence, and to cast the burden of proof on the defendant. In the case of Vinal v. Core, supra, it was held in the sixteenth syllabus that "the discharge by a justice of the plaintiff who has been arrested and brought before him for ex amination, or the refusal of the grand jury to indict him, is prima facie evidence of a want of probable cause, but it is liable to be rebutted by proof." The reason given for this rule in Judge Green's opinion is, in effect, that the only question presented to either the justice or the grand jury is whether there is probable cause of the guilt of the accused, and a discharge of the accused is a negative determination of this question in his favor sufficient to raise a presumption of its nonexistence. And the converse of the proposition has also been held, that the refusal to discharge raises the presumption that probable cause does exist. Maddox v. Jackson, 4 Munf. 462; Grant v. Deuel, 38 Am.Dec. 228; Womack v. Circle, 29 Grat. 192. And it has also been held that where, on examination, the justice commits, and the grand jury fail to find an indictment, the action of one merely offsets, neutralizes, or destroys the other, so as to render both or either of them valueless to establish a prima facie case either for or against the plaintiff, and thus leaves the want of probable cause to be established by other testimony. Miller v. Railway Co., 41 F. 898. It has also been held that the waiver by the accused of a preliminary examination was prima facie evidence of probable cause. Vansickle v. Brown, 68 Mo. 627. In determining whether the prosecution was founded on probable cause, the existing state of facts must be viewed from the standpoint of the prosecutor, and not from that of the accused. For this reason trial and acquittal do not raise the presumption of the want of probable cause. Griffin v. Chubb, 7 Tex. 603; Griffis v. Sellars, 2 Dev. & B. 492; Bitting v. Ten Eyck, 82 Ind. 421; Heldt v. Webster, 60 Tex. 207; Williams v. Van Meter, 8 Mo. 339; Stone v. Crocker, 24 Pick. 81; Thompson v. Rubber Co. (Conn.) 16 A. 554. Verdict of acquittal may be given notwithstanding probable cause, because there is not proof of guilt beyond a reasonable doubt. But the magistrate and grand jury have the very question of probable cause to try, and the evidence on the part of the prosecution is alone examined, and the proceeding is entirely ex parte, at least so far as the grand jury is concerned. In Wharton's Criminal Pleading and Practice (section 360) the law is stated to be: "The question before the grand jury being whether a bill is to be found, the general rule is that they should hear no other evidence but that adduced by the prosecution." And in section 362, quoting from McKean, C.J., of Pennsylvania:...