Munger v. Cox

• Decision Date: 29 April 1926
• Citation: 132 S.E. 687
• Court: Virginia Supreme Court
• Parties: MUNGER. v. COX.

132 S.E. 687

MUNGER.

v.COX.

Special Court of Appeals of Virginia.

April 29, 1926.

On petition for rehearing. Rehearing denied.

For former opinion, see 131 S. E. 841.

CHRISTIAN, J. (for the judges concurring). In the petition for rehearing, the learned counsel contend that the court was inaccurate in the statement that—

"The plaintiff introduced the search warrant, proved the search and failure to find any of the defendant's goods on the premises. The finding of no goods when the search was made prima facie established that there was no probable cause."

It is insisted that in the case of Saunders v. Baldwin, 71 S. E. 620, 112 Va. 431, 34 L. R. A. (N. S.) 958, Ann. Cas. 1913B, 1049, and Singer Mfg. Co. v. Bryant, 54 S. E. 320, 105 Va. 403, it has been decided that the acquittal of the accused is not proof of want of probable cause. This is no doubt, as a general rule, sound law, but it was not the exact question discussed in Saunders v. Baldwin, supra. The question there determined is stated by the court (71 S. E. 623, 112 Va. on page 441), as follows:

"Upon principle, as well as upon authority, it seems to us that if there be a conviction by a justice or other trial court having jurisdiction of the case, which is reversed upon appeal or writ of error and the accused acquitted, such judgment of conviction in an action for malicious prosecution should be held to be conclusive evidence of probable cause, unless it be shown that it was procured by the defendant through fraud or by means of testimony which he knew to be false."

From this statement of the law it may very well be argued that the converse is true, so that an acquittal by a justice may be taken as proof of lack of probable cause, though it seems that the rule is otherwise in Virginia. However, the instant case does not involve the effect of either an acquittal or conviction, for there was no trial of a charge against the plaintiff at any time. The evidence was never produced until upon the trial of the instant civil action. On the trial of this case about 35 witnesses were examined, most of them testifying for the plaintiff, and every circumstance and detail relative to the transaction was brought out by elaborate examination and cross-examination. What is said by the court in reference to prima facie proof of probable cause must be taken with reference to the facts in the present record. The charge made by the defendant against the plaintiff was not merely one of concealing stolen goods, but the defendant made oath, upon which the warrant was issued, that the plaintiff was himself the thief, and so there was initiated a prosecution for theft against the plaintiff at the instance of the defendant. Upon a failure to find the goods, with the theft of which Cox was charged, in the house of Cox, further prosecution under the warrant was abandoned. As the case was fully displayed before the jury, the...