Casperson v. Sproule

• Decision Date: 31 October 1866
• Citation: 39 Mo. 39
• Parties: JOSEPH L. CASPERSON, Appellant, v. ADAM W. SPROULE, Respondent.
• Court: Missouri Supreme Court

39 Mo. 39

JOSEPH L. CASPERSON, Appellant,

v.ADAM W. SPROULE, Respondent.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Circuit Court.

Davis, Evans, and W. H. Lackland, for appellant.

There was evidence before the court and jury of want of probable cause for the prosecution, and it was the duty of the court to submit the case to the jury. Probable cause is, in most cases of malicious prosecution, a mixed question of law and fact, and is defined to be “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged”--Richey v. McBain, 17 Sel. 65; Munns v. Dupont et al., 3 Wash. C. C. 31; Foshay v. Ferguson, 5 Hill, 154; Ash v. Marlow, 20 Ohio, 119; Jacks v. Stimpson, 13 Ills. 761; Burnap v. Marsh, 13 Ills. 539.

And in Turner v. Ambler, 11 Jur. 347, Ld. Denman, C. J., said, “The prevailing law of reasonable and probable cause is that the jury are to ascertain certain facts, and the judge is to direct whether these facts amount to such cause. But, among the facts to be ascertained, is the knowledge of the defendant of the existence of those which tend to show reasonable and probable cause, because, without knowing them he could not act upon them; and also the defendant's belief that the facts amounted to the offence which he charged, because otherwise he will have made them the pretext for prosecution without entertaining the opinion that he had a right to prosecute. In other words, the reasonable and probable cause must appear not only to be deducible in point of law from the facts, but to have existed in the defendant's mind at the time of his proceeding; and perhaps whether it did so or not is rather an independent question for the jury, to be decided on their view of all the particulars of the defendant's conduct, than for the judge, to whom the legal effect of the facts only is more properly referred.”

Glover & Shepley, for respondent.

The burden of proof is on a plaintiff who seeks recovery in an action for malicious prosecution, to show affirmatively the want of any probable cause for the prosecution and malice. Malice may be inferred from the proof of want of probable cause, but want of probable cause cannot be inferred; of this there must be positive, express proof (24 Pick. 83) that there was no ground for commencing the prosecution.

The case in 1 Camp. 199, shows that plaintiff is to show that probable cause did not exist, prima facie, that prosecutions are deemed just; the abandonment of the prosecution is not proof of want of probable cause, nor proof of malice, to show which the burden is on the plaintiff--1 Wend. 140-2. Not malice and chicanery will support the action, nor commencing and abandoning the prosecution, however annoyingly, will maintain the action. If defendant thought he could not maintain the prosecution and dismissed, still when the party prosecuted sued for a prosecution without probable cause, he must show there was no probable cause, and not that the defendant thought or believed there was none--6 Wend. 418; 1 Stark. 48; 2 Dana, 425; 5 Duer, 304-9.

Whenever the prosecutor believes the prosecution just, and moves it on good motives, there is want of malice; but this part of the subject is to be kept distinct in the mind from that of probable cause, which does refer itself to the opinions or feelings or motives of the prosecutor. “The mere belief of the prosecutor is no defence; he must have had probable cause for his belief”; that is, facts that the court and jury believe--13 Ills. 704; 2 Denio, 619. Had there been any evidence of the want of probable cause, it should have gone to the jury; but there was none whatever. The instruction, therefore, was properly given or moved by defendant's counsel.

FAGG, Judge, delivered the opinion of the court.

This was an action for malicious prosecution instituted by Casperson against Sproule in the St. Louis Circuit Court. The substance of the petition was that the defendant had falsely, maliciously, and without any reasonable and probable cause, charged plaintiff with the crime of embezzlement, and caused him to be arrested and taken before the recorder of St. Louis; that the said recorder, served and influenced by the false and malicious testimony of defendant, required plaintiff to enter into a recognizance for his appearance at the next term thereafter of the Criminal Court of St. Louis to answer said charge, and that defendant then and there appeared before the grand jury of said county and...