Mark v. Hastings

• Decision Date: 23 May 1893
• Citation: 101 Ala. 165,13 So. 297
• Parties: MARK ET AL. v. HASTINGS.
• Court: Alabama Supreme Court

13 So. 297

101 Ala. 165

MARK ET AL. v. HASTINGS.

Supreme Court of Alabama

May 23, 1893

Appeal from city court of Anniston; B. F. Cassady, Judge.

Action by Effie Hastings against H. C. Mark and another. From a judgment for plaintiff, defendants appeal. Reversed.

Kelly &amp Smith and J. J. Willett, for appellants.

Knox &amp Bowie, for appellee.

HARALSON J.

This is a suit by appellee against appellants, as individuals and as partners, under the firm name of H. C. Mark & Co., to recover damages for maliciously and without probable cause causing her to be arrested on a charge of larceny. It is shown that the article alleged to have been stolen belonged to the partnership, and that the complaint was made, and the issue of the warrant procured, by Sol. Edel, one of the partners also that the prosecution was terminated, and plaintiff discharged. Exclusive of the participation of H. C. Mark, the other partner, in the prosecution, the only controverted issues involved the existence of malice and of probable cause.

The first exceptions is to the admission of secondary evidence of the contents of the affidavit and warrant, the ground of objection being that the loss was not sufficiently shown. The preliminary proof is that the affidavit and warrant were sent to the sheriff of Jefferson county. The deputy who made the arrest turned over to the sheriff the affidavit, warrant, and bail bond made by plaintiff, asking him to return them to the magistrate before whom the case was to be tried, and that the sheriff inclosed the affidavit, warrant, and bond in an envelope, which he sealed and addressed, and which was mailed; but to whom addressed was not shown. The magistrate before whom the affidavit was made and who issued the warrant made diligent search in his office, and was unable to find the papers. He further testified that he never received them from the sheriff. The only defect in the proof is the failure to show to whom the sheriff addressed the envelope. It being his duty, under the statute, to deliver the warrant to the magistrate issuing it, and before whom it was returnable, the presumption should be indulged, in the absence of proof to the contrary, that in discharging his duty he addressed the envelope to the proper officer. There being no ground to suspect that the papers were withheld for an improper purpose, we think the preliminary proof is prima facie sufficient to allow secondary evidence of the contents of the affidavit and warrant.

Exceptions were also taken to the admissibility of two telegrams, one sent by Hirsch to Edel, and the other by Hirsch to Ullman. Also the declarations of Edel, to the effect that he would not withdraw the criminal proceeding; he wanted the warrant executed; that plaintiff was a thief; and he would not dismiss the prosecution. Plaintiff was, at the time the telegrams were sent, in the employment of Hirsch, and their object was to induce Edel to abandon the prosecution. No objection was made to the introduction of copies of the telegrams. The only specified objection is that the one sent to Edel was not shown to have been received by him. This objection is not founded in fact, for the magistrate testifies that Edel showed him the telegram, at which time he made the first two declarations referred to. The other was made on being shown the telegram received by Ullman. The declarations tended to show the determination of Edel to continue the prosecution, and, with the telegrams, were relevant, and admissible on the question of malice. Any acts or declarations of the defendant tending to show zeal or persistency in the prosecution, or a purpose to vex or oppress the plaintiff, are competent evidence. The motive which influenced the prosecution may be inferred from subsequent conduct.

The exception to the testimony as to the number of persons present when the officer went to arrest plaintiff is well taken. Defendants are not responsible for any wrong or abuse in the manner of making the arrest, which was not directed by them, or in which they did not participate, or subsequently approve. Such evidence is not relevant to the issues, having no bearing on the question of malice or probable cause, and only tends to increase the amount of the recovery by exciting the sympathy of the jury; and this by proof of facts which form no basis of recoverable damages.

There being evidence tending to show that Creen, the magistrate who issued the warrant, but who is also a practicing attorney, advised Edel, upon a statement of the facts, there were sufficient grounds for a prosecution, defendants asked the court to charge: "If the jury believe from the evidence that Edel acted in good faith in making said affidavit, after a full and fair statement of the facts to Mr. Creen, and that Mr. Creen advised such course, then they must find for defendants." It may be regarded as elementary that to maintain an action for malicious prosecution it must be affirmatively shown that the criminal proceeding was instituted or continued, not only through malicious motives, but also without probable cause. These essentials must coexist. The existence of probable cause does not depend upon the actual guilt of the accused. It may exist though no offense in fact has been committed. The rule that the advice of counsel, sought and acted on in good faith, will exempt from liability, is founded on the doctrine that the question of probable cause rests on an honest and reasonable belief on the part of the prosecutor of the guilt of the accused, based on such facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, reasonably, and without prejudice, to believe that the person accused is guilty; and such advice, if acted on in good faith, repels all imputation of malice which is inferred from mere want of probable cause. It is definitely and comprehensively stated in Jordan v. Railroad Co., 81 Ala. 227, 8 South. Rep. 191, by Stone, C.J., in the following language: "Where a prosecutor has fully and fairly submitted to learned counsel all the facts which he knows, or by proper diligence could know, to be capable of proof, and is advised that they are sufficient to sustain the prosecution, and, acting in good faith upon such opinion, he does institute criminal proceeding, he cannot be held liable in an action for malicious prosecution, although the legal opinion given be erroneous. Such advice, honestly sought and acted on, supplies the indispensable element of probable cause." This rule originated in the policy of the law to encourage prosecutions when there is probable cause, actual or constructive, and is founded on the theory that persons who have made the law their study, and followed it as a profession, are well-recognized advisers on questions of law, and that the citizen is justified in relying and acting on their advice. The protecting power of the rule is limited to the advice of licensed attorneys in good standing and of reputed learning and competency. It should not be extended beyond these limitations.

The charge under consideration, when referred to the evidence raises the question whether the advice of a justice of the peace, when he is also a practicing attorney, after a full and fair statement of the facts to him, advises that the prosecution can be maintained, should be allowed the same place in the defense to an action of this character as is given to the advice of learned counsel. The general rule is that the advice of a magistrate cannot justify a prosecution. 14 Amer. & Eng. Enc. Law, 57. Does the fact that the magistrate is also a practicing attorney have a different effect? We think not. The policy of the law forbids a justice of the peace to act as an attorney, or to advise in regard to a prosecution intended to be instituted before him. The evidence tends to show that the facts were not stated to Creen, nor his advice asked as an attorney, but only as a justice of the peace. A magistrate, acting as such, is not a professional adviser. Upon complaint being made that a public offense has been committed, it becomes the duty of a justice of the peace, under the statutes, to examine the complaint, and such witnesses as he may propose, then determine whether there is reasonable ground to believe that the accused is guilty thereof, and, if he so finds, to issue a warrant of arrest. Code, §§ 4256-4258. It would be highly improper for him to prejudge the case. Creen, not being charged in his official capacity with the...