Fox v. Smith

• Decision Date: 13 June 1903
• Citation: 55 A. 698,25 R.I. 255
• Parties: FOX v. SMITH.
• Court: Rhode Island Supreme Court

55 A. 698

25 R.I. 255

FOX

v. SMITH.

Supreme Court of Rhode Island.

June 13, 1903.

Action by Michael J. Fox against James N. Smith. On petition for a new trial. Granted.

Argued before STINESS, C. J., and DOUGLAS and DUBOIS, JJ.

John E. Bolan, for plaintiff.

James C. Collins, Jr., for defendant.

DUBOIS, J. This is an action of trespass on the case for malicious prosecution. After verdict for the plaintiff, the defendant petitions for a new trial, and assigns as his reasons therefor the following: First, the verdict was against the evidence, as grounds for probable cause in commencing this prosecution are shown; second, the evidence tending to show the innocence of the plaintiff of the crime alleged was improperly admitted; third, the improper admission of the district court record, and the lack of proof of the criminal proceedings complained of and their termination; fourth, the plaintiff assented to the discontinuance of the criminal proceedings; fifth, the defendant acted under the advice of counsel in commencing the prosecution; sixth, if the verdict is to be sustained, the damages to be awarded are excessive.

The prosecution complained of was criminal. Tbe defendant, as chief prosecuting agent of the Rhode Island Society for the Prevention of Cruelty to Animals, made complaint and caused the issuance of a warrant against the plaintiff, charging him with being present at a cockfight at Warren. The complaint was made after an investigation by the defendant, whose attention had been directed to the matter by an anonymous written communication containing the statement that there had been a cockfight in Warren some two weeks before, and that one Bousquet would give information, which writing was left at the office of the defendant, who was at home, recovering from an illness, and was brought there to him. On March 5th the defendant began his investigation by going to Warren and interrogating Joseph Bousquet, who informed him, among other things, that there was a cockfight at Warren on Sunday, February 16, 1902, and that 12 or 15 persons were present, including Michael Fox, whom he said he knew. The defendant also Interviewed one Gustavus Barnaby, who informed him that there had been a cockfight, at which Michael Fox was present, and that he saw him. The defendant attempted to talk with a Frenchman, the hired man of Joseph Bousquet, but was unable to do so, except through an interpreter, as the hired man spoke no English, and the defendant did not speak or understand French. Mr. Bousquet acted as interpreter, and, in answer to questions put by the defendant, Mr. Bousquet reported that ins employe stated that he knew the parties, including Fox. The defendant also found the place where the fight had been, and saw feathers on the ground. That after making this investigation lie submitted the matter to Lycurgus Sayles, Esq., a well-known practicing attorney at law, who had been attorney for the society for over 25 years, to obtain his advice as to whether, under the circumstances, complaints should be made and criminal proceedings instituted ngainst the accused, including Michael Fox. Mr. Sayles advised him to proceed, and the defendant made his complaint against Michael Fox, who was notified to be present at the proper district court and give bail for his appearance for trial, which was done. That at the same time four other defendants, charged with being present at the same fight, pleaded "Guilty," and were fined, the plaintiff pleaded "Not guilty," and the case was continued for trial. After the arraignment of the plaintiff, the witness Bousquet informed the defendant that he and his hired man were mistaken in regard to Michael Fox; that the person they mistook for Michael Fox was a man named William McDonald; and also Gustavus Barnaby informed him that he did not see Michael Fox himself, but that Joseph Bousquet informed him that Fox was there. The defendant, finding that his witnesses were not prepared to substantiate the statements made to him, notified the counsel for the plaintiff, and claims that an arrangement was made by which the case was to be adjusted by giving the names of the informants to the plaintiff, and by discontinuing the criminal case against him. Mr. Sayles testified in regard to such proposed adjustment of the matter, and neither appeared before the district court in further prosecution of the case. The plaintiff and his counsel denied that there was any such arrangement or...