Fox v. Smith

• Decision Date: 01 February 1904
• Parties: FOX v. SMITH.
• Court: Rhode Island Supreme Court

57 A. 932

26 R.I. 1

FOX

v. SMITH.

Supreme Court of Rhode Island.

Feb. 1, 1904.

Action by Michael F. Fox against James N. Smith. Plaintiff was nonsuited, and petitions for a new trial. Affirmed.

See 55 Atl. 698.

Argued before TILLINGHAST, DOUGLAS, and DUBOIS, JJ.

John P. Beagan and John E. Bolan, for plaintiff.

James C. Collins, Jr., for defendant.

TILLINGHAST, J. This is trespass on the case for malicious prosecution. At the trial of the case in the common pleas division the plaintiff was nonsuited, and the case is now before us on the plaintiff's petition for a new trial, on the ground that the court erred in granting the defendant's motion for a nonsuit. The only question presented for our decision is whether proof of the plaintiff's trial, acquittal, and discharge in the district court made out a prima facie case of want of probable cause.

The record of the district court, which was produced and put in evidence by the plaintiff, was as follows, viz.: "March 9th, James N. Smith v. Michael F. Fox—Cady, officer-came up March 9th, final adjudication March 11th. Plea, not guilty, trial, not guilty. Defendant discharged." The offense with which the plaintiff was charged in the criminal case brought against him by the defendant was that of attending a cockfight in February, 1902, and the case was one which was within the jurisdiction of said district court to try and determine.

That a prima facie case of want of probable cause is made out by the plaintiff in an action of this sort by proving his discharge by the examining magistrate in the criminal prosecution seems to be the generally accepted doctrine of the courts in this country (see Newell on Malicious Pros. 290, and cases in note), although there are strong cases to the contrary (see Stone v. Crocker, 24 Pick. 81; Israel v. Brooks, 23 Ill. 575; Sweeney v. Perney, 40 Kan. 102, 19 Pac. 328). Amongst the states in which it is held that want of probable cause is shown prima facie in manner aforesaid, are Iowa, Louisiana, Maine, Maryland, Michigan, North Carolina, Pennsylvania, West Virginia, and Wisconsin. See cases collected in 19 A. & E. Ency. of L. (2d Ed.) p. 605 title "Discharge by Examining Magistrate," note 1. In Greenl. Ev. vol. 2 (16th Ed.) § 455, the same doctrine is laid down. Mr. Cooley, in his valuable work on Torts (2d Ed.) p. 213, says: "An acquittal and discharge by a magistrate having power to bind over is evidence of want of probable cause, as is the ignoring of a bill by a grand jury. But neither of these is conclusive."

The ground upon which the courts hold that want of probable cause is shown prima facie by the discharge of a defendant by the examining magistrate is that, unless the complainant is able to produce a sufficient amount of evidence to warrant the magistrate in binding the defendant over to await the action of the grand jury—that is, evidence of probable guilt—this fact alone, prima facie, shows want of probable cause. And we think this seems to be reasonable, for in a bind-over proceeding, so called, all that the complainant is called upon to show is, not that the defendant is guilty, but that there is probable cause to believe him to be guilty; or, in other words, that he is probably guilty. And if the complainant fails to make out such a case against the defendant, there is certainly reasonable ground for holding that, prima facie, the proceeding was instituted without probable cause.

In cases which are within the jurisdiction of the magistrate to try and determine, however, a very different state of facts must be made to appear in order to warrant a finding of guilty. For in such a case the prosecutor must prove, not simply that the defendant is probably guilty — which would show that there was probable cause for the prosecution —but he must prove that the defendant is guilty beyond a reasonable doubt. And it is clearly unreasonable to hold that the failure of the prosecutor to make out such a case is prima facie evidence of want of probable cause in instituting the criminal proceeding. An acquittal may result from some technical error or irregularity, or other circumstance having no bearing on the question of probable cause for the prosecution; the complainant may be unable to produce a material witness, and many other facts may exist which, while having a bearing upon the action of the court, have no bearing whatever on the question of probable cause.

The case of Philpot v. Lucas, 101 Iowa, 478, 70 N. W. 625, clearly illustrates the distinction between bind-over cases and cases which are within the jurisdiction of the trial court. That was a case for malicious prosecution, based upon the acquittal of the plaintiff in an information brought against him by the defendant charging him with the larceny of some chickens of the value of $2. The offense charged was one which the trial court had jurisdiction to try and determine. In the trial of the case before the jury the court ruled that "the discharge by a magistrate of a person accused of crime upon preliminary examination is prima facie evidence of want of probable cause." In reviewing this ruling the Supreme Court said: "This was not a case of one accused of crime upon a preliminary examination. It was a case where, upon information filed before a justice of the peace, the plaintiff was accused of an offense, not indictable, but triable before the justice. Therefore the charge, though correct as applied to a case of one accused of a crime upon preliminary information (Hidy v. Murray, 101 Iowa, 65 ), was inapplicable to the case at bar,...