Brown v. Waite

• Decision Date: 26 February 1909
• Docket Number: 62-1908
• Parties: Brown v. Waite, Appellant
• Court: Pennsylvania Superior Court

38 Pa.Super. 216

Brown v. Waite, Appellant

No. 62-1908

Superior Court of Pennsylvania

February 26, 1909

Argued October 14, 1908 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. No. 1, Phila. Co.-1906 No. 4,917, on verdict for plaintiff in case of Aubrey H. Brown v. Henry F. Waite.

Trespass to recover damages for malicious prosecution.

Kinsey, J., charged in part as follows:

The question comes up to you to determine what were the motives of Dr. Waite in this prosecution; that is, in this arrest and imprisonment of Brown, this plaintiff. In reaching a conclusion upon this, you will take all the facts in this case under your consideration. You have heard them yesterday and to-day, they are fresh in your memories and you can recall them as clearly as I could reiterate them to you. The transaction covered a period of about one week, from, I think, August 11 to 18. On that Saturday night, or Sunday morning, the dog disappeared from in front of a saloon, into which Fisher, who had had the custody of him for Dr. Waite, had entered, leaving the dog upon the outside. When he again came out on the street the dog had disappeared. You heard the story of the disappearance and the finding of it upon the street by Keel, and his taking of it to his home, and also as to Brown's relations to the matter. All the way through the case, -- and I beg you will bear this in mind clearly, -- all through the case you must discriminate Brown's relations to this transaction apart from those of the Keel family.

Brown's statement to you is that upon Sunday morning he saw that dog in the yard, he asked its history and was told that it had followed home one of the Keel boys in the night-time; that on that afternoon he took it out upon the street for exercise; that he was accustomed to working, he tells you, at Cramp's at night and slept through the daytime. This was Sunday that he took it for a walk upon the street, and that he had no further relations to the dog until he saw the advertisement in the " Bulletin" upon Monday afternoon, of $ 25.00 reward; that thereupon he and one of the Keel boys went to the address given in the " Bulletin," saw Fisher and Fisher said that he could not go that evening but upon Tuesday night he would come to the house where the dog was and identify it, if it was his. He tells you he said that for the reason that he wanted the interval of time for consultation with Dr. Waite. On Tuesday night Fisher did go to the house, saw the dog and said it was not his dog. Brown says Fisher did not say that it was Dr. Waite's dog, but he said simply it was not his dog, -- " this is not my dog that I advertised for." Fisher, as against that, says he said it was not his dog, it was Dr. Waite's dog; thereupon the report was made, I suppose, to Dr. Waite -- we can infer -- for the next day, Dr. Waite, this being Wednesday, paid a visit to the house and the trouble occurred at the window. Dr. Waite says that he was violently denounced by one of the Keel boys. The mother, who was on the stand this morning, says the doctor called him a rogue and a thief, or some words to that effect, which resulted in this altercation; thereupon Dr. Waite gives one of his young men, an assistant, as he tells you, $ 25.00 and likewise that he had the $ 25.00 reward with him to pay if needs be at the time of his morning visit, but that there was no tender of it, no offer of it or mention made either then or at any time. The two young men, the doctor's assistant and a friend, visited the neighborhood upon Wednesday evening, I think it was, and the answer given them was that the dog was out at that time for a walk with Brown; that they waited around for three hours, that neither dog nor Brown returning they returned and reported to the doctor. Thereupon next day the warrant was issued; a warrant was issued for the Keel boy and for Brown, the plaintiff here. The plaintiff was taken to a magistrate, and in default of bail was committed to prison, and while he was in prison, as I recall the testimony -- my accuracy or otherwise is always for you -- a search warrant was issued and possession of the dog was secured. Plaintiff was brought up again to the magistrate's and discharged and the case ended.

Now, it will be a question for you to say how far there came into the mind of Dr. Waite any knowledge that would lead a prudent man to the conclusion that Brown was guilty of anything relating to the theft of that dog. Did he have anything to do with the original getting of the dog? Was his action subsequently to its being brought to the house evidential of any guilt upon his part in regard to this dog being stolen? Did Dr. Waite ever see Brown and ask him about the dog? Was it what the law would define in this...