Garrard v. Willet
| Decision Date | 21 October 1830 |
| Citation | 27 Ky. 628 |
| Parties | Garrard v. Willet. |
| Court | Kentucky Court of Appeals |
Malicious Prosecution. Probable Cause. Immaterial Issue. Malice. Verdict of Acquittal. " True Bill."
APPEAL FROM THE BRACKEN CIRCUIT; WM. P. ROBER, JUDGE.
Mills and Brown, for appellant.
Marshall Wickliffe and Wooley, for appellees.
This appeal is prosecuted to reverse a judgment for $500, obtained by the appellee against the appellant, in an action on the case for malicious prosecution.
A demurrer having been sustained to a general plea of probable cause, a special plea was filed, to which the appellee without traversing the special allegations, replied generally that the prosecution was without probable cause, and an issue was thus formed.
In an action for malicious prosecution, " probable cause" may be proved under the general issue.
An immaterial issue is one which will not determine the controversy.
An informal issue is not made up in a proper manner.
The appellant insists that the issue was immaterial. The replication is certainly not such an one as might have been required. It was unnecessary to file an affirmative plea. Under the general issue, " probable cause," if it existed, might have been proved. But the appellant had a right to plead the facts specially. Having filed a plea containing allegations which, if true, amounted to probable cause, a demurrer might have been sustained to the replication, because it did not traverse these allegations. But the verdict cured the defect in the replication. There was an issue; and that issue was not immaterial; it was informal only.
It was in substance, probable cause or not? An immaterial issue is where that which is materially alleged by the pleadings, is not traversed, but an issue taken on such a point as will not determine the case; an informal issue is when such allegations is not traversed in a proper manner."
After the evidence on both sides was closed, the court refused, on the appellant's motion, to instruct the jury, that the grand jury having found the indictment a true bill, he was not bound to show probable cause, and that the appellee was bound to prove malice to entitle himself to a verdict. But instructed the jury, on the appellee's motion, " that, in the absence of proof of probable cause, the jury had a right to infer malice."
If the rejected proposition import, that the finding by the grand jury was conclusive, the court properly overruled it. But if it mean only, as we interpret it; that the finding by the grand jury, was prima facie evidence of probable cause, and imposed the onus on the appellee, it was strictly true.
On the general issue, the plaintiff?? must prove that the prosecution was m?? licious. Malice is the gravamen of the action. Malice will be inferred from the want of probable cause.
On the general issue, in an action for malicious prosecution, the plaintiff must prove that the prosecution was malicious. Malice is the gravamen. It may be express or implied. From the absence of " probable cause," for the prosecution, malice will be inferred.
But as the plaintiff must prove malice, proof of the want of " probable cause" devolves on him.
His acquittal by the venire is evidence of his innocence, but it does not prove the malice of the prosecutor. The defendant will not be required to prove any thing, until the plaintiff shall have given some evidence of malice, independently of any inference from the verdict of acquittal. To presume that every person who has been acquitted by a verdict, was prosecuted maliciously, would be not only unreasonable and false, but subversive of justice. To establish such a presumption as a deduction of law would tend to deter the honest from prosecuting the guilty, and would indirectly stimulate malice to secure impunity by corrupt means. The allegation of malice, or want of probable cause, is indispensable in an action for malicious prosecution.
Acquittal by a venire, is evidence of innocence, but not of malice in the prosecutor or want of probable...
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