Munger v. Cox

• Decision Date: 25 February 1926
• Citation: 146 Va. 574
• Parties: OTTO MUNGER v. ALBERT O. COX.
• Court: Virginia Supreme Court

Page 574

146 Va. 574

OTTO MUNGER v. ALBERT O. COX.

Supreme Court of Virginia, Richmond.

February 25, 1926.

1. MALICIOUS PROSECUTION — Want of Probable Cause a Negative Averment — Burden of Proof — Inferences. — While, in an action for malicious prosecution, want of probable cause is a negative averment the burden of proving it by a preponderance of evidence falls upon the plaintiff. Other things may be inferred from want of probable cause, but this cannot be inferred from anything else; it must be established by proof.

2. MALICIOUS PROSECUTION — Search Warrant — Failure to Find Goods Sought — Prima Facie Case of Want of Probable Cause — Case at Bar. — In an action for malicious prosecution the plaintiff introduced a search warrant obtained by defendant to search plaintiff's premises, proved the search and the failure to find any of the defendant's goods on plaintiff's premises.

Held: That the finding of no goods when the search was made, prima facie established that there was no probable cause.

3. MALICIOUS PROSECUTION — Evidence — Statements to Justice by Defendant when Seeking a Search Warrant as to Previous Losses of Defendant and His Belief that the Same Man Committed the Offenses. — In an action for malicious prosecution, the justice of the peace who issued the search warrant was permitted to testify that defendant told him that he had lost goods previously and intimated that this thing (the housebreaking) coming on, made him believe that probably the same man had committed this offense.

Held: That the admissibility of this evidence did not depend upon whether the statement was made before or after issuance of the search warrant; that it tended to prove that defendant had a suspicion that plaintiff was a thief, and that his action in suing out the search warrant was not the result of an unbiased consideration of the facts. The evidence was therefore admissible.

4. MALICIOUS PROSECUTION — Evidence — Probable Cause — Advice of Layman. — In an action for malicious prosecution the court refused to permit a witness to state that after going over the ground with defendant and his brother he advised defendant that he had probable cause to believe that plaintiff was the thief.

Held: That the opinion of the layman was not proper for the consideration of the jury and this opinion was properly excluded.

5. MALICIOUS PROSECUTION — Probable Cause — Instructions. — In an action for malicious prosecution an instruction that probable cause in a criminal prosecution is not dependent upon the facts acted upon being true, but it is sufficient if at the time they were acted upon they were believed to be true by the party applying for a search warrant, and were such facts and circumstances as would excite the belief in a reasonable mind acting on the facts in the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was being prosecuted.

Held: That this instruction correctly stated the rule of law by which to determine probable cause.

6. MALICIOUS PROSECUTION — Instructions — Hypothetical Case. — The prevailing and better practice seems to be to submit whether probable cause existed to the jury upon hypothetical instructions; that is if they find from the evidence certain enumerated facts to exist, there was probable cause, but if those facts were not proven, or if certain other enumerated facts are found to exist, there was a want of probable cause.

7. MALICIOUS PROSECUTION — Probable Cause — Questions of Law and Fact. — What constitutes probable cause is generally a question for the court, but whether it exists is a question for the jury. Probable cause is a mixed question of law and fact.

8. MALICIOUS PROSECUTION — Probable Cause — Questions of Law and Fact — Definition. — Where the facts proven are undisputed, and the credibility of witnesses is not to be passed upon, whether the facts establish probable cause is a question of law for the court. That is, that the facts proven would excite the belief in a reasonable mind that the person accused is guilty of the crime for which he was being prosecuted.

9. MALICIOUS PROSECUTION — Probable Cause — Honest Belief — Reasonable Ground for Suspicion. — The honest belief of a person commencing a criminal prosecution against another in the guilt of the accused, is an essential element of fact for him in showing probable cause or in disproving the want of it; but he must also show such reasonable grounds of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in that belief, before his belief can become his vindication or shield.

10. MALICIOUS PROSECUTION — Probable Cause — Instructions — Hypothetical Instruction. — In the instant case, an action for malicious prosecution, there was no direct evidence to excite the belief that plaintiff stole the goods of defendant. Tracks leading from the store of defendant towards the premises of plaintiff and the other facts given in evidence by defendant and his brother did not establish the fact that plaintiff was the thief with the certainty which required the trial court to instruct the jury that the evidence proved probable cause.

Held: That where the court had given a correct instruction as to what constitutes probable cause, in general terms, it was not necessary under these circumstances for it to give an hypothetical instruction, especially as there was conflict in the evidence as to the facts.

11. CIRCUMSTANTIAL EVIDENCE — Two Kinds of Circumstantial Evidence. — Circumstantial evidence is of two kinds, namely, certain, or that from which the conclusion in question necessarily follows; and uncertain, or that from which the conclusion does not necessarily follow, but is probable only, and is obtained by process of reasoning.

12. MALICIOUS PROSECUTION — Probable Cause — Circumstantial Evidence — Questions of Law and Fact. — In an action for malicious prosecution, where the circumstantial evidence is certain, or that from which the conclusion necessarily follows, the facts are undisputed and the court should determine whether they constitute probable cause. But where the conclusion is uncertain and obtained by process of reasoning, it is a question for the jury.

13. QUESTION OF LAW AND FACT — Weight of Evidence or Inferences to be Drawn from Circumstances. — In Virginia the weight of the evidence or inferences to be drawn from circumstances is always a matter for the jury under proper instructions from the court.

14. MALICIOUS PROSECUTION — Want of Probable Cause — Question for Jury — Case at Bar. — In the instant case, an action for malicious prosecution, whether an ordinarily cautious man would have believed, from the evidence that tracks leading from the store of defendant near to the residence of plaintiff (and other evidence), that plaintiff stole the goods of defendant was a fact for the ascertainment of the jury, especially as there was conflict between the evidence of the defendant and his brother and that of witnesses introduced to corroborate them.

15. MALICIOUS PROSECUTION — Want of Probable Cause — Instructions — Hypothetical Instruction — In the instant case the court gave to the jury a proper definition of probable cause and submitted to them the question of its existence under the evidence and refused an hypothetical instruction, where there was conflict in the evidence and no direct evidence of plaintiff's guilt.

Held: No error.

16. MALICIOUS PROSECUTION — Advice of Counsel — Probable Cause — Malice — Inference. — Evidence of advice is admissible to rebut the inference of malice, but cannot be considered to prove probable cause. While the jury may infer malice from the want of probable cause, the latter (probable cause) will never be inferred from the former, no matter how much malice is shown.

17. MALICIOUS PROSECUTION — Advice of Counsel — Disclosure of Facts to Counsel. — A party may act on the advice of counsel bona fide sought and obtained, without incurring liability for damages for a malicious prosecution. But to justify him something more than the mere advice must be made to appear. The facts must be shown on which the advice was given; and it must be a full, correct and honest statement by the defendant of all the material facts known to him.

18. MALICIOUS PROSECUTION — Advice of Counsel — Disclosure of Facts to Counsel — Questions of Law and Fact. — In an action for malicious prosecution, the testimony presented an issue of fact as to whether or not the defendant made a full and fair statement of all the facts to his counsel.

Held: That this question was for the determination of the jury.

19. MALICIOUS PROSECUTION — Finding Stolen Goods on Land of Plaintiff — Larceny — Presumption. — Finding stolen goods on the land of another person raises no presumption that the owner of the land was the thief.

20. LARCENY — Presumption from Possession of Stolen Goods — Exclusive Possession. — It is well settled law in Virginia that the possession of goods recently stolen must be in the exclusive possession of the possessor to warrant the presumption that he was the thief.

Error to a judgment of the Circuit Court of Fluvanna county, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Haden & Haden, Allen, Walsh & Michie, for the plaintiff in error.

Gordon & Gordon, S. W. Shelton, for the defendant in error.

CHRISTIAN, J., delivered the opinion of the court.

On the nights of January 3-4, 1924, the store of the plaintiff in error, Otto Munger, at Antioch, in Fluvanna county, Virginia, was broken into and various articles, such as a pair of shoes, overalls, union suits, dry goods, socks, pocket knives, etc., were taken therefrom. During the early part of that night it rained, but after one o'clock it cleared off — and the ground became slightly frozen, with frost upon it.

Early in the morning of the fourth (Friday), Munger and his brot...