Brennan v. Tracy

• Decision Date: 26 June 1876
• Parties: BART BRENNAN, Plaintiff in Error, v. JOHN H. TRACY, Defendant in Error.
• Court: Missouri Court of Appeals

2 Mo.App. 540

BART BRENNAN, Plaintiff in Error,

v.JOHN H. TRACY, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Jun. 26, 1876.

1. In an action for malicious prosecution, the issue is, not whether the plaintiff was guilty of the crime for which he was prosecuted, but whether the plaintiff had probable cause to believe him so. It is not error to refuse testimony offered to show the plaintiff's intent in committing the acts alleged against him.

2. The question of probable cause does not depend so much upon the real facts as upon the honest belief of the party prosecuting. Innocence of the suspected party is not necessarily inconsistent with an honest belief of his guilt.

3. The question whether a publication calculated to affect the value of the stock in a banking corporation, and so to operate upon its business reputation, is libelous or not, cannot be determined by an exmaination of the assets and liabilities of the corporation. The true test is to be found in the market value of the stock.

4. In an action for malicious prosecution, it is not error to reject proofs of the plaintiff's good reputation when his character has not been assailed in the trial.

5. Although the court may properly inform the jury whether certain facts do or do not constitute probable cause for a prosecution, yet an instruction offered which states the facts partially, omitting some which should be considered in connection with those stated, and declaring that the facts stated do not amount to probable cause, is properly refused.

6. In Missouri, libel is a criminal offense.

7. Where words, which on their face appear harmless, have a covert meaning, implying an injurious effect, the libel may be as complete as if it were apparent in the common acceptation of the words.

8. A corporation may be the subject of a criminal libel.

ERROR to St. Louis Circuit Court.

Affirmed.

Daniel Dillon, for plaintiff in error, cited: 2 Greenl. on Ev., secs. 454, 455; Stone v. Crocker, 24 Pick. 81; Humphries v. Parker, 52 Me. 505; 1 Bishop's Cr. Law, sec. 591; 2 Bishop's Cr. Law, secs. 907, 909, 918; The State v. Burham, 9 N. H. 34.

Farish & Griffin, for defendant in error, cited: Townsend, secs. 92, 263, 784 (2 ed.); 2 Stark. on Slander, 130; Gillett v. Missouri Valley R. R. Co., 55 Mo. 315; Maynard v. Fireman Ins. Co., 47 Cal. 207; 48 Ill. 87.

LEWIS, J., delivered the opinion of the court.

This is an action for malicious prosecution, originally instituted against the Central Savings Bank, Henry C. Patterson, and John H. Tracy. A demurrer filed by the Central Savings Bank was sustained, and the testimony failing to connect the defendant Patterson with the prosecution complained of, he was discharged of liability in this proceeding by an instruction, of which no complaint is made by the plaintiff in error. The points saved in the court below relate to defendant Tracy only, in whose favor a verdict was rendered by the jury.

It appears from the record that the plaintiff was owner of fifty shares of stock in the Central Savings Bank, at a time when the market value was about $42 per share; that he caused, nevertheless, an advertisement to be published in the daily papers of St. Louis offering his stock for sale at $30 per share; that, on the day when the advertisement appeared, several offers were made to plaintiff for the purchase of his stock at the price stated, but he refused to sell at less than $50 per share; that he sold it subsequently at the price of $40.

It further appears that, upon affidavit and information filed by defendant in the Court of Criminal Correction, plaintiff was arrested upon a charge of libel, on account of the advertisement above mentioned, and released upon bail for his appearance; that, after several continuances--the plaintiff having on each occasion appeared for trial--the cause was dismissed for want of prosecution.

Plaintiff complains that, in the trial of the present cause, he was not permitted to testify what was his intention in offering the stock for sale at $30 per share. He claims that, in order to constitute the offense of libel, there must be a malicious intent to defame and injure. This position may be correct; but the application fails. The matter of inquiry here was, not whether the plaintiff had in fact committed the offense of libel, but whether the defendant, in instituting the prosecution, had probable cause to believe that he had done so. His secret intentions, whether guilty or innocent, could form no part of the influences operating upon the belief of the defendant, and, therefore, had no relevancy to the question of probable cause. It may sometimes happen, as to particular facts necessary to constitute a criminal offense, that their non-existence will be the subject of legitimate proof in a case like the present. But this is because a knowledge of such non-existence may have reached the defendant, or may have been at least accessible to him, and so have negatived a reasonable ground for the prosecution complained of. The mere fact of intent in the accused party, known only to himself, and not made manifest by outward act, can never have any such operation. As was held in Humphries v. Parker, 52 Me. 505, the question of probable cause, in an action for malicious prosecution, does not always depend upon “the real and exact facts,” but upon “the honest belief of the party prosecuting.” Innocence of the suspected party is not necessarily inconsistent with such an honest belief of his accuser, nor does the former, so far as the illustration here proposed is concerned, tend in the...