Comisky v. Breen

• Decision Date: 30 June 1880
• Citation: 7 Bradw. 369,7 Ill.App. 369
• Parties: JOHN COMISKYv.JAMES BREEN.
• Court: United States Appellate Court of Illinois

7 Ill.App. 369

7 Bradw. 369

JOHN COMISKY

v.JAMES BREEN.

Appellate Court of Illinois, Second District.

June Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of LaSalle county; the Hon. JOSIAH MCROBERTS, Judge, presiding. Opinion filed December 4, 1880.

Action on the case for malicious prosecution with a count in trespass for false imprisonment, commenced by appellee against the appellant in the LaSalle Circuit Court.

The counts in case aver that the appellant maliciously and without any reasonable or probable cause, caused a warrant to be issued by one McCaleb, a justice of the peace, of said county, charging the appellee with the crime of arson in maliciously setting fire to and burning one stack of hay and one crib of oats, the property of the appellant; that upon such warrant the appellee was arrested and taken before said justice, and upon examination he was discharged and the prosecution ended. The general issue was filed by the defendant to the whole declaration, and a special plea to the count in trespass justifying the arrest by virtue of the warrant upon which the appellee was arrested. A trial was had, resulting in a verdict against the defendant below, and the court overruling ?? motion for a new trial, entered judgment upon the verdict and the defendant appealed to this court.

MR. E. F. BULL and MR. H. GUNN, for appellant; that the warrant under which plaintiff was arrested being regular in form, it constituted a complete defense to the count for false imprisonment, cited Bigelow's Lead. Cases in Tort, 275; Housh v. The People, 75 Ill. 487; McDonald v. Wilkie, 13 Ill. 22; Martin v. Walker, 15 Ill. 378.

As to what must be shown by plaintiff in support of this action: Bigelow's Lead. Cases in Tort, 178; 2 Addison on Torts, 762; Wade v. Walden, 23 Ill, 425; Israel v. Brooks, 23 Ill. 575.

Malice is not a legal presumption from want of probable cause: Harpham v. Whitney, 77 Ill. 32.

An instruction that gives undue prominence to a single isolated fact, is vicious: Hewitt v. Johnson, 72 Ill. 513; Evans v. George, 80 Ill. 51; Ogden v. Kirby, 79 Ill. 555; Hatch v. Marsh, 71 Ill. 370; Homes v. Hale, 71 Ill. 552.

The plaintiff must show affirmatively a want of probable cause: Ames v. Snider, 69 Ill. 376; Palmer v. Richardson, 70 Ill. 544; Ross v. Inness, 35 Ill. 488; Davis v. Wisher, 72 Ill. 262.

There is no presumption of malice: Anderson v. Friend, 71 Ill. 475; Wagner v. Aultman, 2 Bradwell, 147; Israel v. Brooks, 23 Ill. 575; Hurd v. Shaw, 20 Ill. 354; Bishop v. Bell, 2 Bradwell, 551; Griffin v. Chub, 7 Tex. 603; Levy v. Brannan, 39 Cal. 485; Boyd v. Cross, 35 Md. 194; Dietz v. Langfit. 63 Pa. 234; Markle v. Ottenmeyer, 50 Mo. 49.

The defendant may show that he acted bona fide upon legal advice: Cole v. Curtiss, 16 Minn. 182.

Mr. M. T. MOLONEY and Mr. SAMUEL RICHARDSON, for appellee; that to constitute a probable cause there must be reasonable ground for suspicion, cited Ross v. Inness, 35 Ill. 481; Krug v. Ward, 77 Ill. 603.

Upon the power to amend a bill of exceptions: Wallahan v. The People, 40 Ill. 102; Brooks v. Bruyn, 40 Ill. 65; Berger v. Riggs, 40 Ill. 62; Kelsey v. Berry, 40 Ill. 64; Ballance v. Leonard, 40 Ill. 72; Wilder v. House, 40 Ill. 92; Jones v. F. M. Ins. Co. 55 Mo. 342; DeKalb Co. v. Hixon, 44 Mo. 342.

PILLSBURY, J.

The view that we have taken of this case renders it unnecessary for us to formally dispose of the motion of the appellant, taken with the cause, to strike the amended record from the files.

In order for a plaintiff to maintain his action for malicious prosecution, he must affirmatively establish, first: that the defendant instituted the prosecution without probable cause for so doing. Israel v. Brooks, 23 Ill. 575; Ross v. Inness, 35 Ill. 487; Ames v. Snider, 69 Ill. 376; Palmer v. Richardson, 70 Ill. 544; Brown v. Smith, 53 Ill. 291.

Probable cause is defined in Harpham v. Whitney, 77 Ill. 32, as being, “such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.” And proof that such facts and circumstances did not exist, though negative in character must be made by the plaintiff. Brown v. Smith, 83 Ill. 291.

Secondly, the plaintiff must show that the motive of the prosecutor in instituting the proceeding was malicious, and the question of malice is one for the jury under all the facts in evidence. It must be found to exist, as a material fact in the case, and while it is said in some of the cases that malice may be inferred from a want of probable cause, it is not intended to hold that this inference is in all cases necessarily to be deduced from the existence of the fact that there was no probable cause for the arrest.

Justice Sheldon in Harpham v. Whitney, supra, says: “It is often said the jury may infer malice from the want of probable cause. They may do so under certain circumstances, but not in all cases. Malice is in no case a legal presumption from the want of probable cause, it being for the jury to find from the facts proved, when there was no probable cause, whether there was malice or not.” Therefore it is seen that it depends upon the facts and circumstances in the case going to prove the want of probable cause, whether the jury should or should not infer malice from the want of probable cause. While it would be difficult to announce a rule applicable to every case as it may arise, perhaps it may be said that the jury would be authorized to infer malice from the want of probable cause alone, where the facts and circumstances in evidence which establish the principal fact, are inconsistent with good faith upon the part of the prosecutor, but in cases where the proof may show a want of probable cause, yet if the evidence upon this point is consistent with good faith, the jury ought not to infer malice, simply, because the principal fact is proved, but in such case the plaintiff should go further and introduce independent evidence of malice in the prosecutor. Malice therefore, not being a legal presumption in any case, is to be proved like any other fact, and so long as all the evidence in the case is consistent with good faith on the part of the defendant, it cannot be fairly said that malice is established. If the accompanying circumstances, however, show that the defendant in instituting the prosecution was actuated by an improper or wrongful motive this will be sufficient proof of malice.

Thirdly, the plaintiff must show that the prosecution has been legally determined in his favor. Feagle v. Simpson, 1 Scam. 30; McBean v. Ritchie, 18 Ill. 114; Walker v. Martin, 43 Ill 508; Blalock v. Randall, 76 Ill. 224.

And the averments in the declaration as to the particular manner in which the prosecution was terminated, must be proved as alleged. 3 Phillips on Evidence, 568.

The declaration in this case avers that the plaintiff had a hearing before McCaleb, the justice who issued the warrant, and upon a hearing before him touching said charge he was acquitted and discharged from custody. To prove this allegation the appellee offered in evidence the record of the proceedings made by the justice, upon the trial of the appellee, as appears by the amended record, filed in this court, which evidence the court below excluded upon objection of appellant. The court then allowed the appellee, over the objection of the appellant, to prove said proceedings by the oral testimony of the justice.

The appellee, while excepting to the action of the court in excluding the record of the justice, offered for the purpose only of showing that the prosecution had been legally terminated in his favor, took no measure to preserve his exception under the statute, neither has he assigned any cross-error questioning this action of the court.

Was it competent for the appellee to prove by parol evidence, the proceedings had been before the justice including the judgment of the court in discharging the appellee?

It is elementary that oral evidence cannot be substituted for any instrument which the law requires to be in writing. 1 Greenl. on Ev. § 89, so long as the writing exists, and is in the power of the party to produce.

The authorities are harmonious, as appears to us, upon the proposition, not only that the record is competent to prove the fact of the acquittal, but that the fact cannot be proved otherwise in cases of malicious prosecution, where the prosecution was ended by the acquittal of the accused.

It is said in Phillips on Evidence, 3 Vol. page 568: “If the bill of indictment was returned by the grand jury not a true bill, or if the plaintiff was acquitted on the trial of the prosecution, these facts can only be proved by the original record or by an examined copy of the record;” and in Selwyn's Nisi Prius, the rule is said to be that the plaintiff must produce an examined copy of the record of the indictment, and where there has been a verdict of not guilty, of the acquittal. 2 Vol. page 1072: “It must appear that the prosecution was at an end, and if terminated by a judgment this is proved by the record, and it must appear that the plaintiff was acquitted of the charge.” 2 Greenl. on Ev. § 452.

It is true that justice's courts are not courts of record, yet the statute requires the justice when acting judicially to keep a docket in which his judgments are to be recorded, and a party cannot be allowed to prove by secondary evidence what is in writing in his office without showing as preliminary to such proof that the writing has been lost or destroyed. The remarks of the court in Cole v. Hanks, 3 Monroe 208, which was a case for malicious prosecution, are particularly applicable to the facts in this record: “The law is well settled, that before this action can be maintained, the prosecution must be determined, and how it was determined the plaintiff must show in his declaration, in order that the court may see that it is really...