Johns v. Marsh

• Court: Maryland Supreme Court
• Writing for the Court: Alvey, J., delivered the opinion of the court.
• Citation: Johns v. Marsh, 52 Md. 323 (Md. 1879)
• Decision Date: 15 July 1879
• Parties: JOHN T. JOHNS v. JOHN MARSH.

52 Md. 323

JOHN T. JOHNS v. JOHN MARSH.

Court of Appeals of Maryland

July 15, 1879

Appeal from the Circuit Court for Baltimore County.

The case is stated in the opinion of the court.

Exception.--At the trial the plaintiff offered nine prayers, all of which were rejected and not inserted in the record except the following, which were conceded by the defendant:

7. If the jury shall find that the plaintiff was indicted, tried and acquitted in the Circuit Court for Baltimore County, on the charge set forth in the record of that court, and the docket entries read in evidence, and shall find that the defendant, Johns, aided and assisted in procuring the arrest and prosecution of the plaintiff, by voluntarily appearing before the grand jury for the purpose of instigating the same, and aided and contributed to such prosecution in any way, under such circumstances as would not have induced a reasonable and dispassionate man to have undertaken such prosecution from public motives, then there was no probable cause for such prosecution, and the jury may infer, in the absence of sufficient proof to satisfy them to the contrary that said prosecution was malicious in law, and their verdict may be for the plaintiff.

8. If the jury find for the plaintiff, the measure of damages is such an amount as they find will compensate the plaintiff for his actual outlay and expenses about his defense in the criminal trial, and for his loss of time, and for the injury to his feelings, person and character by his arrest and prosecution, by reason of the defendant's wrongful act and may also award exemplary or punitive damages as a punishment to the defendant.

And the defendant offered the following prayers:

1. That the verdict must be for the defendant unless the jury shall find that the defendant was actuated by malice, and also that he acted without reasonable and probable cause in instituting the criminal charge against the plaintiff, which has been offered in evidence.

2. That if the jury shall find that the defendant was not actuated by malice in instituting said prosecution, then the verdict must be for the defendant.

3. That if the jury shall find that the defendant consulted counsel and laid all the facts within his knowledge, or which by the exercise of reasonable diligence he could have ascertained before said counsel, and that he was thereupon advised by said counsel, it was a proper case to be laid before the grand jury, those facts are evidence tending to prove the absence of malice on the part of the defendant.

4. That reasonable and probable cause means such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused was guilty of the crime imputed to him. And if they shall find in this cause that the defendant had such reasonable and probable cause for the accusation which was made against the plaintiff, then their verdict must be for the defendant.

5. That if the jury shall find that the defendant was present at the trial of the case of Louisa J. Marsh against the defendant and that upon said trial he understood the plaintiff to testify that the license to keep an ordinary in Carroll County in 1872, was issued in the name of Louisa J. Marsh, and not in the name of the plaintiff, and they shall further find that the defendant afterwards ascertained that the license was in the name of the plaintiff and not in the name of Louisa J. Marsh, and that acting upon a belief that the plaintiff had so sworn contrary to the fact, the defendant laid information of these facts before the grand jury, and also furnished them with the names of other witnesses who could testify that the plaintiff had sworn at said trial that the license was in the name of Louisa J. Marsh, then there was reasonable and probable cause for the defendant to lay said information before the grand jury, even though the jury may believe that in point of fact the plaintiff swore, or meant to be understood as swearing at said trial, that the license in question had been issued in his own name.

5 1/2. That if the jury shall find that the defendant was present at the trial of the case of Louisa J. Marsh against the defendant, and that upon said trial he understood the plaintiff to testify that the license to keep an ordinary in Carroll County in 1872, was issued in the name of Louisa J. Marsh, and not in the name of the plaintiff, and they shall further find that the defendant afterwards ascertained that the license was in the name of the plaintiff, and not in the name of Louisa J. Marsh, and that acting upon the belief that the plaintiff had so sworn contrary to the fact, the defendant laid information of these facts before the grand jury, and also furnished them with the names of other witnesses who could testify that the plaintiff had sworn at said trial that the license was in the name of Louisa J. Marsh, then said facts, if believed by the jury, are evidence tending to prove the absence of malice on the part of the defendant, even though the jury may believe that in point of fact the plaintiff swore, or meant to be understood as swearing on said trial, that the license in question had been issued in his own name.

6. That if the jury shall find from the evidence in the cause, that the defendant appeared before the grand inquest of the State of Maryland, for the body of Baltimore County, and informed the said grand inquest that at the September Term, 1874, of the Circuit Court for Baltimore County, during the trial in said court of a case in which Louisa Jane Marsh, by her next friend, John Marsh, was plaintiff, and John T. Johns, was defendant, the plaintiff, (John Marsh,) had testified under oath that a certain license to keep an ordinary in the town of Manchester, in Carroll County, in the State of Maryland, from the 1st of May, 1872, to the 1st of May, 1873, had been issued to and in the name of Louisa Jane Marsh, and that he, the defendant, had been informed since said John Marsh, the plaintiff, had so testified, that in truth and in fact said license to keep an ordinary in the town of Manchester during said period had not been granted to and in the name of Louisa Jane Marsh, and that the defendant informed the grand inquest that he wished them to investigate the matter and see if there was anything wrong about it, and that when the defendant was asked by a member of said grand inquest, whether he wished them to see whether there had been any perjury, the defendant replied ""yes;" that if in addition to the above facts, the jury shall find from the evidence in the cause, that at the time the defendant so appeared before the said grand inquest and requested them to make said investigation, he acted upon such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the fact that the plaintiff, John Marsh, had so testified, taken into connection with the truth as to the issuing of said license to keep an ordinary in said town of Manchester, from the 1st of May, 1872, to the 1st of May, 1873, was a proper subject to be investigated by said grand inquest, in order that they might see whether the crime of perjury had or had not been committed by said John Marsh, that then there was probable cause to justify the defendant's conduct, in connection with the alleged arrest and the alleged prosecution of the plaintiff, and their verdict must be for the defendant.

And the plaintiff objected to the defendant's first, third, fourth and sixth prayers, on the ground that there was no legally sufficient evidence in the case on which to base the same.

And he objected to defendant's first and fourth prayers on the ground that each put to the jury matter of law.

The court (Yellott, J.) granted the plaintiff's seventh and eighth prayers which were conceded by the defendant, and overruled the defendant's first, second, fourth, fifth and fifth and a half prayers, and granted the defendant's third and sixth prayers. The defendant excepted, and the verdict and judgment being against him, appealed.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, MILLER and ALVEY, JJ.

Henry V. D. Johns and Wm. M. Merrick, for the appellant.

The law is uniform and characteristic of this action, that both malice and the want of probable cause must co-exist before a recovery can be had, and that the law of that prayer is not embraced by any of the instructions which were granted. Boyd v. Cross, 35 Md. 194; Medcalf v. Ins. Co., 45 Md. 198; Stansbury v. Fogle, 37 Md. 370-386.

The law is uniform that malice must be proved, and the rejection of the defendant's second prayer was in violation of that fundamental principle.

The court erred in refusing the defendant's fifth prayer, because the facts embraced by its hypothesis, if found, would clearly make a case of probable cause in law.

As to the fifth and a half prayer, the facts therein recited would tend to repel the imputation of malice, and the defendant was entitled to have the benefit of the court's instruction that those facts had a tendency to disprove malice, quite as well as the fact of the absence of probable cause tends to prove the existence of malice, as stated in the plaintiff's seventh prayer. McWilliams v. Hoban, 42 Md. 65.

John J. Yellott and Wm. P. Maulsby, for the appellee.

The defendant's first, second and fourth prayers were properly rejected for various reasons.

1st. Because they were abstract propositions. Newman v. McComas, 43 Md. 70; State v. Deford, 30 Md. 179; 40 Md. 212; R. R. Co. v. Resley, 14 Md. 424.

2nd. They submitted to the jury matters of law. It is for the court in these cases to say what particular facts constitute probable...