O'Brien v. Frasier

• Decision Date: 05 November 1885
• Citation: 1 A. 465,47 N.J.L. 349
• Parties: O'BRIEN v. FRASIER.
• Court: New Jersey Supreme Court

1 A. 465

47 N.J.L. 349

O'BRIEN

v. FRASIER.

SUPREME COURT OF NEW JERSEY.

November 5, 1885.

Writ of error.

The suit was for a malicious prosecution. The declaration set forth, in the usual form, the good character of the plaintiff, and that the defendant, intending to injure her in her fame and credit without any reasonable cause, made a charge of perjury against her, and so caused her arrest and imprisonment in the county jail until she was discharged on account of no indictment having been found against her by the grand jury; that by means of these facts she was greatly injured in her said credit and reputation, and brought into public scandal, infamy, and disgrace, etc. The plea was the general issue.

Stevenson & Ryle, for plaintiff in error.

A. M. Ward, for defendant in error.

BEASLEY, C. J. The bills of exceptions sent up with the writ in this case present three points for adjudication. These several propositions will be considered in the order in which they stand in the brief of the counsel of this plaintiff in error. The basis of the suit was the arrest and imprisonment of the plaintiff on an affidavit made by the defendant, containing a charge of perjury, and which charge, it was asserted, had been made falsely, maliciously, and without probable cause. The false swearing thus imputed to the plaintiff consisted in a statement made by her under oath, in a suit between herself and the defendant, that a certain bank-book which she had turned over to the defendant contained a credit of a certain sum due from the bank to her. Upon the strength of this affidavit a justice issued a warrant, and the plaintiff had been arrested and imprisoned until she was discharged in consequence of the grand jury failing to find an indictment against her. At the trial of the cause it was admitted by the counsel of the defendant that the statements of this affidavit were altogether untrue, and that there had been no probable cause for the arrest and imprisonment of the plaintiff on that particular charge; and the defense was that, although he signed the affidavit upon which the warrant issued, he did such act by mistake; that the charge which he intended to make was of a different character; that what he meant to depose was that the plaintiff, on the trial referred to, had sworn falsely with respect to a certain amount of cash she had given him, and not, as it stood in his affidavit, that she had falsified touching the contents of the bank-book which she had transferred to him. In this aspect the defendant was permitted at the trial, when he was on the witness stand, to testify that he did not intend to charge in his affidavit that the plaintiff swore falsely as to the amount of money placed to her credit in her bank-book, but that she swore falsely with respect to the amount of cash she had paid to him, and that the magistrate before whom he had laid his complaint, from a misconception of his statement, inserted the former instead of the latter accusation, and that he had ignorantly taken the oath in that form. This offer of proof was rejected by the court, and, in effect, the defendant was not allowed to prove that he believed that the plaintiff had perjured herself in her allegation of the amount of cash she had paid to him, and that his purpose had been to charge her with that offense.

The circumstances of the case are peculiar; but, upon reflection, I am satisfied that the testimony thus shut out was admissible. It is not regarded as legal, on the ground stated in the brief of counsel, which was that it helped to support the defendant's statement that he had not meant to make the particular accusations contained in his affidavit; for such a collateral issue could not be interpolated merely by way of confirmation. But it is conceived that it was legitimate evidence, as it was an essential part of the defense interposed. The case was in this situation: The defendant's affidavit had been produced, and it had been proved that its crimination was without foundation, and without color of foundation. This the defendant admitted, and he thereby confessed that he had made a false charge of crime against the plaintiff, resting on no probable cause, and that by reason of such improper action on his part she had been arrested and imprisoned. If the case had been closed at this point, the jury would have been constrained in right reason to find, not only that the prosecution had been founded in falsehood to the knowledge of the defendant, but that it was consequently malicious, and thus his liability would have ensued. In this posture of affairs the defendant could not controvert the fact that the charge that he had in point of fact sworn to was false and without foundation, but it was still open for him to disprove the inference that would have necessarily resulted from the admitted facts that he had put the law in motion against the plaintiff from a malicious motive.

The existence of an illegal intention in this action was as essential to its support as were his falsity of the crimination and the absence of reasonable ground for a belief in its truth. In order to manifest a legal motive for his conduct, the offer was made to the effect that the charge that he had meant to make was one touching a different matter, and that such latter inculpation was true according to his belief. It will be observed that if this had been the true attitude of the defendant, that is, reasonably believing that the plaintiff had committed the crime of perjury in the particular sought to be shown, and he had taken steps in behalf of public justice to call her to account, and in that course of law a mistake in the affidavit had supervened, it is clear that, no matter how negligent he had been, his motive had not been illegal. Proof of the naked fact that one charge had been substituted for another would not of itself have been a defense to the action, because it would not have...