McCoy v. Kalbach

Decision Date14 October 1912
Docket Number2-1912
Citation51 Pa.Super. 364
PartiesMcCoy v. Kalbach, Appellant
CourtPennsylvania Superior Court

Argued March 12, 1912 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendants, from judgment of C.P. York Co., Aug. T., 1909, No. 82, on verdict for plaintiff in case of Thomas McCoy v. A. M. Kalbach and J. G. Stauffer.

Trespass to recover damages for malicious prosecution. Before Bittinger, P. J.

At the trial the defendant made the following offer:

We propose to prove by his witness that on October 6, 1908, Thomas McCoy was working for the witness, Dr. Kalbach, as a teamster employed at $ 25.00 a month and board, having been employed by him at those terms on September 7, 1908. That on October 6, the witness saw McCoy at the Shoemaker place near which the witness was conducting some lumber operations, and the place where the team by an arrangement made by the witness with Mr. Shoemaker was stabled, and where McCoy was boarding together with other employees of the witness, the witness paying their board. That at his home in Maryland, on the evening of that day, he received a message by telephone from his foreman, Mr. Howard, who had the management and control of his property, and was in authority over his employees, including McCoy; that on the afternoon of that day, October 6, McCoy had been sent by Howard with a team of six mules of Dr. Kalbach's and a wagon to take a load of lumber and deliver it at Taneytown and to get the mules shod at the blacksmith shop at Taneytown where Dr. Kalbach's teams were in the habit of being shod at his expense. That he had not returned and that Howard and Shoemaker had made investigation and found that the halters belonging to the mules, and with which they were usually tied in the stable, were also missing. That McCoy and the team had driven away from Taneytown towards York county -- towards the Maryland and Pennsylvania line. That acting upon this information the witness telephoned to J. G. Stauffer, one of the defendants in this case, informing him that he believed a six mule team of his had been stolen and that he believed it would turn up in York, -- his information being it had started in that direction, -- and requesting him to have the team retaken and the thief arrested.

For the purpose of showing probable cause for the institution by the defendant, this witness, of the prosecution complained of; and to sustain the issue on the part of the defendants.

Mr. Black: The offer is objected to as not proving or tending to prove probable cause for the prosecution involved in this case. The information in this case charges McCoy with the larceny of a mule team at the city of York in Pennsylvania, and there is not anything in this offer that proves or tends to prove probable cause for Stauffer or Kalbach believing that he had been guilty of larceny of a mule team in the city of York or York county.

And it is further objected to that Kalbach has already testified that the sole object and purpose of the information made at his instance against McCoy in Pennsylvania was to recover his property, which excludes the idea or possibility of probable cause for criminal prosecution in Pennsylvania.

The Court: We think the offer is admissible to show under what influence Kalbach was acting when he gave this order, and to show probable cause for rebutting malice. We admit the offer.

Mr. Black: That is offered for one purpose, to show probable cause.

The Court: Well, probable cause rebuts malice.


The Court: We look upon this as authority to Stauffer to apprehend the thief and recover the team.


The Court: At that rate criminals could not be apprehended when they escaped from the jurisdiction without getting an indictment against them first. It is always customary to have them apprehended, at least to wait the apprehension by the proper officer from the state from which he escapes. That is constantly being done. The party is detained until the proceedings can be had. Criminals are constantly apprehended every place, and detained until authorities from the state from which they escape appear, and it is necessary to protect the public.


Mr. Black: Before we go any further in this argument, I want to object to the use of the word " Criminal" in this case. He has been prosecuted but acquitted.

Mr. Niles: I used it in the quotation.

The Court: He used it in the language of the decision.


The Court: I do not see hardly how we can admit this offer that he had probable cause to believe a larceny was committed in York county. Every man is presumed to know the law; and both Stauffer and Kalbach are presumed to know the law, and that the larceny was committed in Maryland. I am not at all convinced that it is admissible. The difficulty is that this prosecution was instituted in the city of York where the larceny was not committed. Now, can you show there is probable cause for that when he knew the mules were stolen in Maryland.


The Court: I can not see how this offer can prove or tend to prove the fact that the defendant, Kalbach, as an ordinarily prudent man, or any ordinarily prudent man, could believe that this act was committed in York county. He knew the team was employed in Maryland and it was taken, and was informed that the plaintiff had started with the team and driven it over into Pennsylvania, and neither he nor any other prudent man could have believed this man was guilty of larceny in York county; yet he instructed he should be arrested, and assumes the responsibility for the arrest. The trouble is that the matter was carried to extremes here. I do not pretend to say he was without grievance, but he must be held responsible for his acts, and a person within the jurisdiction of the court is entitled to the protection of the laws of the commonwealth. Not to be arrested without a proper information. I want to see the case referred to by Mr. Niles. I would not say that was larceny in Pennsylvania. He was employed, and the moment he left with the goods he was guilty of larceny by bailee in Maryland, and the mere fact that he was apprehended in Pennsylvania would not make him guilty of larceny in Pennsylvania.


The Court: I will consider the matter. It does not strike me that it is evidence that a man recklessly orders a prosecution in a state where larceny is not committed -- I do not see how they can show probable cause in this way, in the manner in which you indicate, by producing facts and circumstances happening in Maryland, especially when it appears in the case that this team was employed in hauling in Maryland and boarded there by Kalbach, that the man started to Taneytown which was in Maryland, and from there was traced into York county, and that the larceny openly occurred in Maryland, if at all, and it was larceny as bailee; how those facts can be shown; and he did not return, and came on to York with the team; as a probable cause for prosecution in York county. That I cannot see. We will consider this matter until to-morrow morning when court meets, and any authorities on the case I will expect the attorneys to send to my house as soon as possible. I will look at it myself, and see if I can find these authorities. We want to be right in this matter, of course.

The jury will observe the caution I have given them about this case, and keep themselves entirely free from outside influence, and speak to no one about the case outside, but keep your minds entirely clear so as to decide the case according to the evidence produced here in court.

Court adjourned until 9 o'clock A. M. Thursday, October 27, 1910.

Nine o'clock A. M. Thursday, October 27, 1910. Court met pursuant to adjournment.

The Court: We have examined the authorities to which we were referred by counsel, and read a number of decisions, and come to the conclusion that this offer must be rejected. Probable cause in a suit for malicious prosecution, where proven to the jury by competent proof, is a question of mixed law and fact. The court must first decide before the offer of evidence is admitted that the evidence if believed by the jury would show probable cause. We cannot decide that the defendant, Kalbach, would with the knowledge of the taking of the team in Maryland by the plaintiff already in evidence, as a man of ordinary intelligence and prudence believe that at the time of the institution of his prosecution that his team had been stolen in the city and county of York, Pennsylvania, and that this prosecution against the plaintiff, McCoy, was ordered to be made by Dr. Kalbach, and made there by Jacob Stauffer. Hence the offer must be rejected. The offer is rejected, and an exception sealed for the defendant.]

Verdict and judgment for plaintiff for $ 1,000. Defendant appealed.

Error assigned among others was rejection of offer as above and various instructions, quoted in the opinion of the Superior Court.


Henry C. Niles, with him W. U. Hensel, John A. Hoober and M. S. Niles, for appellants. -- In an action for malicious prosecution, the question is not whether the person charged with a crime was guilty, but what were the indications of his guilt. The test is the belief of the prosecutor in the existence of probable cause based on reasonable grounds: Mitchell v. Logan, 172 Pa. 349; Gilliford v. Windel, 108 Pa. 142; Boyd v. Kerr, 216 Pa. 259; Hantman v. Hedden, 31 Pa.Super. 564; Herman v. Brookerhoff, 8 Watts, 240.

J. S Black, with him D. P. Klinedinst, for appellee. -- The crime charged was the larceny of the mules in Pennsylvania. Information that he had stolen them in Maryland could not lead a reasonable man to believe that he had stolen them in...

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3 cases
  • Commonwealth v. Bentz
    • United States
    • Pennsylvania Commonwealth Court
    • November 1, 1934 3 weeks unless in the meantime a demand should be made agreeable to the Constitution of the United States. See also McCoy v. Kalbach, 51 Pa.Super 364, v. Mulholland, 6 Phila. 280, and Commonwealth v. O'Neill, 10 Dist. R. 227. This subject of fugitives from justice is a most interesting o......
  • Smith v. Patton
    • United States
    • Pennsylvania Commonwealth Court
    • January 19, 1929
    ...been confined in prison from Nov. 4, 1903, the day on which he was arrested, until Nov. 11, 1903, the day of his discharge. In McCoy v. Kalbach, 51 Pa.Super. 364, it appeared, undisputed evidence, that Dr. A. B. Kalbach was conducting a lumber operation in Maryland, where he had in his empl......
  • McCoy v. Kalbach
    • United States
    • Pennsylvania Supreme Court
    • June 27, 1913

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