Hill v. Palm

• Decision Date: 31 March 1866
• Parties: JOHN HILL, Respondent, v. WILLIAM PALM, Appellant.
• Court: Missouri Supreme Court

38 Mo. 13

JOHN HILL, Respondent,

v.WILLIAM PALM, Appellant.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Court of Common Pleas.

The answer, setting out the facts, specially denied that defendant prosecuted the plaintiff for larceny; alleged that defendant, being the owner of a lot of ground, and the buildings and fences thereon, from which part of the materials had been taken at plaintiff's instigation, and used by him on premises he occupied, and worked up by him, did make a complaint to a policeman, but did not name the character of the offence, alleging that he acted from good motives, and upon probable cause to suspect the defendant, and without malice.

It appeared upon the trial that defendant made complaint to an officer of police, that his property had been taken from his premises, and that the officer arrested the plaintiff, and he was brought before the recorder; but that no witnesses were summoned for the State or city, and upon a statement made by plaintiff's attorney that the case was abandoned, the plaintiff was discharged.

The defendant not hearing of the complaint, a day or two afterwards made inquiry and learned of the discharge of the plaintiff. He then applied to the city attorney, and stated the facts; who thereupon drew up an affidavit, to which defendant made oath, and the attorney preferred the charge of larceny. The case was tried before the recorder, witnesses heard upon both sides, and after taking the case into consideration until the next day, the recorder again discharged the plaintiff, and the plaintiff brought this suit.

It appeared further, that the defendant owned a lot at the corner of Second and Plum streets, upon which were a brick house and fence; that the plaintiff's son and another boy had taken away the bricks--some of them out of the wall, and some of them from the ground--and carried them to the premises of plaintiff, on the same block, and used them to build a wall on the bank of the creek. It appeared also that bricks were taken after plaintiff had been forbidden by defendant to take them. It was also in evidence, that word was sent to Palm of these acts before any complaint was made.

One witness testified to seeing Hill take boards from the fence and carry them away; and it also appeared that from these boards Hill made boxes, which he sold, and that Hill's son tore down part of the fence. About 2,000 bricks were taken from the house, in all; the value may have been from $3 to $8. The plaintiff gave rebutting testimony.

Instructions given for plaintiff.

1. If the jury believe from the evidence that the defendant caused the arrest of the plaintiff for larceny, as charged in the petition, and that said arrests were without probable cause and malicious, they ought to find for the plaintiff.

2. There are two kinds of malice: malice in fact, and malice in law. The former, in common acceptation, means ill-will against a person; the latter, a wrongful act done intentionally. If, therefore, the jury believe from the evidence that the defendant caused plaintiff to be arrested for larceny, as charged in plaintiff's petition, and that the defendant was moved thereto by ill-will against the plaintiff, or that the prosecution was wrongfully instituted by the defendant, and was without probable cause, the jury must find for the plaintiff.

3. If the jury believe from the evidence that the prosecution of Hill was without probable cause, they may infer therefrom that it was malicious.

4. If the jury find for the plaintiff, he will be entitled to recover such damages as the jury believe from the evidence he suffered by reason of the prosecution; and, in addition thereto, the jury may add such further amount, by way of smart money, as they think from all the circumstances the defendant should be punished with.

To the giving of which the defendant excepted.

Defendant asked the following instructions, which the court refused:

1. If the defendant had good and reasonable cause to believe the plaintiff had taken, or received the goods and personal property of the defendant, without consent of the defendant, with intent to convert the same to his own use, then the defendant had good and reasonable cause to make complaint against the plaintiff, and the jury will find for the defendant.

2. The fact that the defendant stated the facts to the city attorney, and that the city attorney advised that the offence committed was larceny, and the fact that the recorder took time to advise upon the cause after hearing the evidence, are facts tending to prove that the defendant was instigated by good motives, and had reasonable and probable cause to make complaint against the plaintiff.

3. If the jury believe from the evidence that defendant Palm, from the evidence before him, had good reason to believe that the plaintiff had severed from the buildings and fences of defendant, or had directed to be severed, the materials of which they were composed, and took and carried the same away unlawfully, with intent to convert the said materials to his own use, they will find that defendant had reasonable cause for making complaint against plaintiff, and the jury will find for the defendant.

4. The jury are instructed as matters of law, that upon the evidence the defendant had reasonable and probable cause to make complaint against the plaintiff, and the jury will therefore find for the defendant.

5. If the defendant had good and reasonable cause to believe that the plaintiff had taken or received the goods and property of defendant, without the consent of the defendant, unlawfully, with intent to convert the same to his own use, then the defendant had good and reasonable cause to make complaint against the plaintiff, and the jury will find for the defendant.

To which refusal the defendant excepted at the time.

At the instance of the defendant, instruction No. 6 was given, which is set out in the opinion of the court.

Whittelsey with Krum & Decker, for appellant.

I. It was the duty of the court to instruct the jury as to what was probable cause for the defendant to make complaint against the plaintiff; or if, upon the evidence, it was apparent that the defendant had probable cause, it was incumbent upon the court so to tell the jury: which, in the English practice, is equivalent to directing a non-suit; for, if the defendant had probable cause, it was immaterial what were his motives. The court, by refusing the instructions asked by defendant, declined to assume this duty, and left to the jury the legal question, what facts would have authorized the defendant to make complaint, and constituted probable cause--Hill v. Yeates, 2 B. Mon. 80; Buckley v. Keteltas, 2 Seld., N. Y. 384; Pangburn v. Bull, 1 Wend. 345; Masten v. Deyo, 2 Wend., 424; Hall v. Suydam, 6 Barb., S. C. 83; Foshay v. Ferguson, 2 Denio, 617; Turner v. Ambler, 10 Ad. & El., n. s., 252; Munro v. Dupont, 3 Wash. C. C. 31, 37; Stone v. Crocker, 24 Pick. 81, 84; Sutton v. Johnstone, 1 T. R. 545.

II. The defendant had probable cause, as appears by the evidence. He had been told, before making complaint, that his property had been taken away by defendant, and he had taken away all excuse of the immaterial value of the property taken, by forbidding defendant from taking any of it.

As to what constitutes probable cause--Foshay v. Ferguson, 2 Den. 617; 2 Hill. Torts, 473, 317, 18.

The question of probable cause does not rest on the actual guilt or innocence of the accused, but upon the reasonable belief of the prosecutor as to such guilt or innocence--Hall v. Suydam, 6 Barb., S. C. 83; Chandler v. McPherson, 11 Ala. 916; Richey v. McBean, 17 Ills. 63; Ash v. Marlow, 20 Ohio, 119.

III. The court erred in refusing the 1st, 3d and 5th instructions asked by defendant. They present, in different forms, the proposition that if defendant did actually take and carry away the property of defendant, with intent to convert the same to his own use, unlawfully, or if he severed from the freehold the materials of the buildings, and carried them away, against the consent of defendant, unlawfully, with intent to convert the same to his own use, then the defendant had reasonable and probable cause for the prosecution; or, in a few words, if the plaintiff stole the property himself, or received it when stolen, or if the defendant had good reason so to believe, then there was probable cause. The instructions thus refused use the very terms which define ““larceny”--Whart. Law Dict. ad verb. Larceny. The use of the words of the statute (R. C. 1855, p. 577, § 31), omitting only the word “steal,” but supplying that by others.

The statute (R. C. 1855, p. 579, § 38) makes the severing from a freehold of any produce of the value of five dollars, or from any building or fence materials of like value, and taking and converting the same with intent to steal, larceny, in the same manner as if the article had been previously severed. By R. C. 1855, p. 577, § 31, petty larceny is the stealing property under the value of ten dollars, and is a misdemeanor. R. C. 1855, p. 584, § 60, punishes the malicious injury to buildings, fences, &c.

The effect of the refusal of these instructions is to punish the defendant in damages, because the things taken were not of the value of five dollars, although they were his property, taken against his consent, by the plaintiff, unlawfully, and converted to his own use wilfully.

Holiday, Davis & Evans, for respondent.

I. From an inspection of the record in this cause, and especially from the instructions given and refused, it will be seen that the only contested point, on the trial of this case below, was the question of probable cause. In 1 Hill. Torts, 504, § 23, it is said, “The question of probable cause, in an action for malicious prosecution, is a mixed question of law and fact. Where the facts are uncontested, it is the duty of the judge to apply the law and determine the issue. If there are contested facts, he should charge the...