Hutchinson v. Wenzel
| Decision Date | 28 March 1900 |
| Docket Number | 18,771 |
| Parties | Hutchinson v. Wenzel |
| Court | Indiana Supreme Court |
Rehearing Denied June 8, 1900.
From the Gibson Circuit Court.
Reversed.
A Gilchrist, C. A. De Bruler, C. A. Buskirk and J. W. Brady for appellant.
G. V. Menzies, J. W. Spencer and J. R. Brill, for appellee.
Appellee sued the appellant for malicious prosecution. Verdict and judgment for appellee for $ 5,000. The overruling of appellant's motion for a new trial is the only error assigned.
The first reason set out in the motion, and the one most earnestly urged upon the consideration of this court, is that the verdict of the jury is not sustained by sufficient evidence.
The material facts which the evidence tends to establish follow: At the time of his arrest, the appellee, Wenzel, had resided in the city of Evansville for four years, about two miles distant from appellant, Hutchinson, and had lived near by in the county for about thirty years. Wenzel bore a good reputation for honesty and integrity among his neighbors in Evansville, and also in the county where he had previously lived. In the early part of June, 1895, Hutchinson sold Wenzel a policy of life insurance, and, as collateral security for the payment of the premium, took from Wenzel a note dated Ridgeway, Illinois, April 25, 1895, calling for $ 125, and purporting to have been executed by one Mathias Bahl for value, payable to the order of Wenzel on the 25th day of December, 1896. At the time of the assignment Hutchinson promised that he would investigate the financial responsibility of Bahl, who resided at Ridgeway, sixty-four miles from Evansville. Wenzel informed Hutchinson, when the note was assigned, that Bahl was his brother-in-law. July 8, 1895, Hutchinson, having learned through a commercial agency that Bahl was a responsible man, bought the note, which he held as collateral security, giving Wenzel therefor the face value in cash, less the amount of insurance premium and a small sum of borrowed money. One Kettle was a solicitor of insurance for Hutchinson, and, with the latter's knowledge and advice, Kettle procured Wenzel to introduce him among his (Wenzel's) friends, and any commission thus earned in the sale of insurance was to be shared between them. A few weeks after the sale of the note to Hutchinson, Kettle and Wenzel took to Hutchinson's office an application for insurance purporting to have been executed by one Wintenheimer. Kettle requested that the commission due on the application be advanced. The request was refused, and subsequently Wintenheimer denied signing the application, which was destroyed, and no further step taken upon it. Its execution was affirmed by Kettle and Wenzel, and denied by Wintenheimer. Wenzel could not write nor read writing, and with much difficulty wrote his name. Sixteen months later Hutchinson wrote and mailed a letter to Bahl, as follows: In due course of mail, eleven days later, appellant received a letter purporting to come from Bahl, of date and words following: Appellant received the Bahl letter on the evening of the day following its date, and immediately called up police headquarters by telephone, and requested the services of an officer. He shortly after drove to police headquarters, and had an interview with the chief, which resulted in the chief sending an officer, without a warrant, to bring Wenzel in. When Wenzel arrived, he most earnestly asserted to appellant, in the presence of chief of police Covey, the genuineness of the note, and that Bahl would not deny its execution if confronted with it, and gave a minute detail of the transaction out of which the note grew, and the names of four persons, all residents of Ridgeway, who were present, and knew all about the transaction, among them a justice of the peace, who, with other papers, wrote the note; and at the same time exhibiting to appellant two other notes executed in the same transaction to him by Bahl, and written by the same justice. Wenzel also at the same time offered to give appellant security in double the amount of the note, to stand until the integrity of the note could be investigated. Appellant, without any knowledge of Bahl except such as he had learned through a commercial agency concerning his solvency, without any effort to communicate with Bahl further, or with any of the persons alleged to have been present when the note was executed, and without effort to learn Wenzel's standing among his neighbors, and without any step to verify Wenzel's guilt further than to compare the signature to the note with that to the letter addressed to him under date of December 11th, and disregarding the statement of the chief of police, who told him he thought Wenzel "talked all right", and neglecting to advise with the prosecuting attorney, who was present, of his own motion executed an affidavit prepared for him by the city clerk, charging Wenzel with uttering a forged note, upon which affidavit a warrant was issued, and Wenzel taken into custody.
On December 22nd an indictment was returned by the grand jury, charging Wenzel with the offense, and, subsequent to the return of the indictment, the prosecuting attorney moved that a nolle prosequi be entered, stating in his motion as a reason therefor that Mathias Bahl had appeared before the grand jury, and testified under oath that the alleged forged note was his genuine note, executed by him to Wenzel for a valuable consideration. The motion was sustained, and appellee discharged. Upon the trial the defendant, Hutchinson, offered no evidence tending to prove Wenzel's guilt.
As we have reached the conclusion that this appeal must be sustained, it must suffice for us to say, in respect of the first point presented, that, after a careful examination of the evidence, we fail to perceive sufficient ground for disturbing the judgment for want of evidence to support the verdict.
It is next urged that the court erred in refusing to give to the jury appellant's request number four. In this instruction the court was requested to charge the jury, in substance, that if they found from the evidence that Wenzel sold to the defendant the note in question, which purported to have been made by Mathias Bahl; that on the 30th day of November, 1896, the defendant wrote to Bahl the letter above set out; that in answer to that letter the defendant received from Bahl the letter of December 11th, above set out; that if the jury "further find that the defendant had at said time no knowledge or information of any fact which would cause a man of reasonable intelligence and caution to doubt or disbelieve the statement in said letter that said note was a forgery, and that the defendant did believe such statement", then there was probable cause for the prosecution, and the verdict should be for the defendant.
There are certain settled principles of the law that must be applied in determining the accuracy of the instruction objected to: (1) In actions for malicious prosecution "where the facts are not disputed the court must decide, as matter of law, whether they do or do not constitute probable cause; but where they are disputed, then the court must hypothetically state the material facts which there is evidence fairly tending to prove, and positively direct as to the law upon the assumed state of facts." Pennsylvania Co. v. Weddle, 100 Ind. 138, 147; Cottrell v. Cottrell, 126 Ind. 181, 25 N.E. 905. (2) "Probable cause" is "that apparent state of facts found to exist upon reasonable inquiry; that is, such inquiry as the given case renders convenient and proper, which would induce a reasonably intelligent and prudent man to believe the accused person had committed, in a criminal case, the crime charged." Lacy v. Mitchell, 23 Ind. 67; Hays v. Blizzard, 30 Ind. 457; Richter v. Koster, 45 Ind. 440; Graeter v. Williams, 55 Ind. 461; Pennsylvania Co. v. Weddle, supra.
The position assumed by the appellant seems to be that, if the Bahl letter was of a character to create in the mind of a person of reasonable intelligence and caution the belief that Wenzel was guilty, and did in fact create such belief in the mind of the defendant, that fact alone constituted probable cause. We can not approve this doctrine. A belief, however honest, if suddenly acquired upon information not known to be true, will not justify a prosecution if formed upon inadequate inquiry under circumstances which afford...
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