Donnelly v. Daggett
| Decision Date | 23 November 1887 |
| Citation | 14 N.E. 161,145 Mass. 314 |
| Parties | DONNELLY v. DAGGETT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.E. Bragg, for plaintiff.
The question is one of probable cause, and whether the question of probable cause should have been decided by the court, or was properly submitted to the jury. In order to set up the advice of counsel to show probable cause, it is incumbent on the defendant to prove that before the commencement of criminal proceedings, he made a full and fair statement of the facts in the case within his knowledge to his attorney which, according to his bill of exceptions, the defendant failed to do. White v. Carr, 71 Me. 555; Stone v. Swift, 4 Pick. 393. The defendant's bill of exceptions shows on its face that there was a conflict of testimony between the defendant and his counsel, between the plaintiff and the defendant, and between the plaintiff and deputy-sheriff, Riley, on matters material to the question of probable cause; and when facts material to the question of probable cause are in dispute, that question is properly one for the jury to decide. Cooley, Torts, 181; Driggs v Burton, 44 Vt. 125, 147, 148; Heyne v. Blair, 62 N.Y. 19, 22; Hall v. Suydam, 6 Barb. 83; Besson v. Southard, 10 N.Y. 240; Kidder v Parkhurst, 3 Allen, 395; Cloon v. Gerry, 13 Gray, 201; Blackford v. Dod, 2 Barn. & Adol. 184; Hinton v. Heather, 14 Mees. & W. 131; Mitchell v. Wall, 111 Mass. 492, 499; Burton v. Railroad Co., 19 Amer.Law Rev. 489; Casebeer v. Rice, 24 N.W. 693.
Wm. H. Fox and F.I. Babcock, for defendant.
Whether there was probable cause was a question of law upon the evidence. When the facts are undisputed, it is a mere question of law which the court must decide. And it is so when facts are in dispute, if, upon the most favorable aspect for the plaintiff, there is not shown a want of probable cause. When material facts are in dispute, the finding upon these facts must be left to the jury, with instructions from the court as to what leading facts or classes of fact, if proved to the satisfaction of the jury, will constitute probable cause. Stone v. Crocker, 24 Pick. 81, 85; Kidder v. Parkhurst, 3 Allen, 393; Good v. French, 115 Mass. 201, 203. The exceptions do not state that the court gave any instruction to the jury as to what facts would, as matter of law, constitute probable cause; but they do say that the court committed to the jury the question whether, on the evidence, there was probable cause. Can this court infer, in the utter absence of any statement to that effect in the exceptions, and in view of the fact that the court had just declined to rule that the question of probable cause was a question of law upon the facts proven, that the case was given to the jury under any adequate and proper instructions as to what would, in law, constitute probable cause? Bacon v. Towne, 4 Cush. 217, 241. Probable cause does not depend on the actual state of the case, in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution, and the burden of proving a want of probable cause is on the plaintiff. James v. Phelps, 11 Adol. & E. 483, 489; Bacon v. Towne, 4 Cush. 217, 239; Krulevitz v. Railroad Co., 140 Mass. 573, 5 N.E. 500; 2 Greenl.Ev. § 449; Good v. French, 115 Mass. 201, 203.
We submit that the facts show a probable cause in the mind of the plaintiff at the time he made the complaints, or rather fail to show a want of such probable cause; for the burden of proving a want of probable cause is on the plaintiff. Stone v. Swift, 4 Pick. 389; Wills v. Noyes, 12 Pick. 327; Wilder v. Holden, 24 Pick. 8, 11; Olmstead v. Partridge, 16 Gray, 381, 383; Allen v. Codman, 139 Mass. 136. There is no suggestion in the evidence or in the exceptions that the defendant ought not to have relied upon the advice of his counsel; and the decision of the magistrate in sending the cases to the grand jury is prima facie evidence that he had reason to rely upon it and act upon it. The court was asked to rule that the evidence did not show want of probable cause. If the defendant acted honestly in following the advice of his counsel, and testified truly as to matters not contradicted, there was probable cause. Can it be assumed that any instructions to this effect were given? It has always been held that actions of this kind are not to be favored. And if it seems probable to this court that injustice has been done to the defendant, the exceptions should be sustained. Stone v. Crocker, 24 Pick. 84; Kidder v. Parkhurst, 3 Allen, 393.
OPINION
Whether there is probable cause for a prosecution is a question of law only where all the facts which are relevant are either agreed or are undisputed. Sartwell v. Parker, 141 Mass. 405, 5 N.E. 807. It is also a question of law whether there is sufficient evidence of a want of probable cause to sustain the burden...
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