Lewton v. Hower

• Decision Date: 15 January 1895
• Citation: 16 So. 616,35 Fla. 58
• Parties: LEWTON v. HOWER.
• Court: Florida Supreme Court

16 So. 616

35 Fla. 58

LEWTON v. HOWER.

Florida Supreme Court

January 15, 1895

Appeal from circuit court, Orange county; John D. Broome, Judge.

Action by J. M. Hower, Jr., against George W. Lewton. From a judgment for plaintiff, defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. In an action for malicious prosecution, when the facts are disputed, the question of probable cause in the prosecution about which the suit is brought is a mixed question of law and fact. It should not be submitted to the jury to determine the whole question. The court should determine the law, and direct the jury to find the facts in the case.

2. In the case at bar, the court, having given the jury a definition of 'probable cause,' instructed them as follows: 'Both the questions of probable cause and malice * * * are questions for the jury to determine and find from the evidence.' Held, that this instruction was not erroneous, as submitting to the jury both the law and the facts of the case.

3. It is not error for a trial court to refuse to give the jury an instruction requested by one of the parties to a suit, when there is no evidence in the case to which the instruction would be applicable.

4. Two elements are necessary to sustain a suit for malicious prosecution: (1) Malice in the prosecutor; and (2) a want of probable cause for the prosecution. The fact that there was a committal or binding over under the prosecution alleged to be malicious is an important matter of defense, but such committal or binding over does not negative the alleged malice of the prosecutor, but only the want of probable cause.

5. A committal or binding over, under a prosecution for a criminal offense, is not an adjudication upon the motive of the prosecutor, but only a determination that probable cause exists to hold the person prosecuted.

6. It was not error in the trial court to refuse to give the following instruction to the jury, to wit: 'The action of the United States commissioner, in finding sufficient cause from the evidence introduced before and considered by him as sufficient to bind the then defendant over to appear at the trial court, to that extent contradicts the charge of malice in the prosecution in preferring the charge, unless it is shown that he used illegal practices to procure testimony or to influence the commissioner in his action in that cause.'

COUNSEL

J. F. Welborne and John W. Price, for appellant.

E. K Foster and Alex. St. Clair Abrams, for appellee.

OPINION

LIDDON, J.

The case in the court below was a suit for malicious prosecution. The appellee was the plaintiff, and the appellant was the defendant. This case has been before this court before (18 Fla. 328), where the declaration is set out in full. On the trial the plaintiff recovered judgment, from which the defendant appealed.

The only assignments of error that are argued by the counsel for the appellant relate to instructions given by the judge to the jury, and to his refusal to give other instructions which were requested by the appellant. In accordance with our rule we consider only the assignments which are argued. One of these instructions given by the circuit judge was as follows 'Both the questions of probable cause and malice, as well as the questions of the prosecution by the defendant and its termination in acquittal or discharge of the plaintiff, are questions for the jury to determine and find from the evidence.' The objection urged against this instruction is that the question of probable cause is one of law, or sometimes a mixed one of law and fact, but never a question of fact alone. It is contended that the circuit court, by this instruction, declared that probable cause was a question of fact for the jury to determine, or has constituted the jury the judges of the law as well as the triors of the facts in the case. If this charge had stood alone, and was considered upon its individual merits, without reference to other portions of the charge of the court, it would undoubtedly be obnoxious to the objection made, and erroneous. It would be a practical direction to the jury to find the facts in the case, make their own definition of probable cause, and thus determine the facts and legal effect. We have been unable to find any authority which holds that the question of probable cause in an action of this kind is one of fact, and to be determined by a jury. Some authorities maintain that the question of probable cause is wholly one of law, and for the court to determine. These cases all say that the question, whether the facts as found by the jury constitute probable cause, should be determined by the court, and not by the jury. Eastin v. Bank, 66 Cal. 123, 4 P. 1106; Ball v. Rawles, 93 Cal. 222 28 P. 937; Landa v. Obert, 45 Tex. 539; Bulkeley v. Smith, 2 Duer, 261; Panton v. Williams, 2 Adol. &amp E. (N. S.) 169; Thomp. Trials, § 1613. The great and overwhelming weight of authority is that probable cause is a mied question of law and of fact. Among other cases and text-books so holding are Greenwade v. Mills, 31 Miss. 464; Nash v. Orr, 3 Brev. 94; Besson v. Southard, 10 N.Y. 236; Pangburn v. Bull, 1 Wend. 345; Schofield v. Ferrers, 47 Pa. St. 194; McCormick v. Sisson, 7 Cow. 715; Fagnan v. Knox, 66 N.Y. 525; Johnstone v. Sutton, 1 Term R. 510, 545, 1 Revised Rep. 269, 291; Humphries v. Parker, 52 Me. 502; Sartwell v. Parker, 141 Mass. 405, 5 N.E. 807; Munns v. Dupont, 3 Wash. C. C. 31, Fed. Cas. No. 9,926; Ramsey v. Arrott, 64 Tex. 320; Heyne v. Blair, 62 N.Y. 19; Lytton v. Baird, 95 Ind. 349; Ash v. Marlow, 20 Ohio, 119; McNulty v. Walker, 64 Miss. 198, 1 So. 55; 2 Greenl. Ev. (15th Ed.) § 454, and authorities cited; 14 Am. & Eng. Enc. Law, p. 49 et seq., and notes; Sharpe v. Johnston, 59 Mo. 557; Womack v. Circle, 29 Grat. 192. It is the general principle, deducible from these authorities, that when the facts are undisputed, as upon demurrer, or are admitted or not disputed at the trial, the question is one of law, and the court declares the legal effect of such facts. When the facts are controverted, then the question becomes a mixed question of law and fact. It should not be submitted to the jury to determine the whole question. The court, confining itself to its proper sphere, should decide the law, and, confining the jury to its proper sphere, should direct them to find only the facts of the case. 'Ad questiones facti non respondent judices; ad questiones legis non respondent juratores.' We do not think the charge subject to the objection made, for the reason that the court had also charged the jury as follows: 'Probable cause for a criminal prosecution is understood to be such conduct on the part of the accused as may induce the jury to infer that the prosecution was undertaken for public motives.' The court had given a definition of 'probable cause'; had told the jury what constituted probable cause in the eyes of the law. The charge complained of, therefore, only directed the jury to find from the facts of the case whether there was such probable cause, within the meaning of the definition laid down by the court. The definition was not the fullest and most complete which might have been given, yet it was one approved by courts of great respectability. Ulmer v. Leland, 1 Greenl. 135; cases cited in note to Bell v. Graham, 9 Am. Dec. 691; Bitting v. Ten Eyck, 82 Ind. 421. While the definition given is not perhaps the best and most...