Putnam v. Stalker

• Decision Date: 30 July 1907
• Citation: 91 P. 363,50 Or. 210
• Parties: PUTNAM v. STALKER.
• Court: Oregon Supreme Court

91 P. 363

50 Or. 210

PUTNAM v. STALKER.

Supreme Court of Oregon

July 30, 1907

Appeal from Circuit Court, Grant County; George E. Davis, Judge.

Action by H.N. Putnam against J.L. Stalker. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action for malicious prosecution. On March 27, 1906 defendant caused plaintiff to be arrested at Canyon City Grant county, on a warrant issued by a justice of the peace based on an information sworn to by defendant, charging plaintiff with having obtained from defendant on March 9 1906, the sum of $37.50, under false pretenses. By reason thereof, plaintiff was confined in the county jail for 41 days. On May 21, 1906, at the regular term of the circuit court for that county, the prosecuting attorney returned into court an information indorsed "not a true bill," and thereupon plaintiff was discharged. In addition to the foregoing facts, plaintiff alleges that the prosecution was without probable cause and was actuated by malice, concluding with proper and usual allegations of damages. By his amended answer, defendant, by general denial, traverses the whole complaint, and, as a further defense, alleges the facts on which the charge was based; that, after making an investigation of all the circumstances, he submitted all the facts within his knowledge, through his attorney, to the deputy district attorney for that county, who advised defendant that there was probable cause for prosecuting plaintiff, and requested defendant to make and file the information on which the warrant was issued; that acting in good faith, and relying upon the advice of the deputy district attorney, he made the information; that on April 25, 1906, a legal preliminary examination of the charge against plaintiff was had before the magistrate, at which evidence was introduced and witnesses were sworn and examined, both on behalf of the state, represented by the deputy district attorney, and on behalf of defendant in said cause, who appeared in person and by his attorney, and, after a full and fair hearing of the cause, plaintiff herein was held by the magistrate to await the action of the grand jury at the next term of circuit court, and was admitted to bail in the sum of $250, and, being unable to give the same, he was committed to the custody of the sheriff of the county; that these acts of the defendant are the same acts stated in the complaint; and that the charges preferred were true. By the reply there was a general denial of the new matter of the answer. The cause was tried before a jury, and at the close of plaintiff's case defendant moved for a nonsuit, which was overruled by the court. He also requested of the court an instruction for a verdict in his behalf, based upon a claim that he had established by uncontroverted and competent evidence the defense that the prosecution was upon the advice and direction of the prosecuting attorney, which requested instruction was denied. The verdict was for plaintiff in the sum of $120, on which judgment was accordingly entered, and from which defendant appeals. Error is assigned upon the overruling of the motion for nonsuit and the refusal of the court to instruct the jury as requested by the defendant, as well as upon admission of testimony objected to by defendant.

Errett Hicks, for appellant.

V.G. Cozad, for respondent.

SLATER C. (after stating the facts).

By his motion for nonsuit, defendant invoked the ruling of the court on the legal effect of the evidence of plaintiff to support his cause of action. Upon such motion every intendment and every fair and legitimate inference which can arise from the evidence must be made in favor of plaintiff, and the court must assume those facts as true which the jury can properly find under the evidence. Wallace v. Railway Co., 26 Or. 174, 37 P. 477, 25 L.R.A. 663. And if the evidence tends to show facts which will sustain the action, though remote, the motion for nonsuit should not be sustained. Herbert v. Dufur, 23 Or. 464, 32 P. 302. But if the testimony offered by plaintiff tends to show that the defendant had good reason to believe that the law had been violated, and he acted in good faith, it is the duty of the court to declare the legal effect of the evidence by allowing the motion for nonsuit. "The welfare of society," says Mr. Justice Bean, in Hess v. Baking Co., 31 Or. 513, 49 P. 803, "imperatively demands that those who violate the law shall be promptly and speedily punished, and to accomplish that purpose the rule has been firmly established that any citizen who has good reason to believe that the law has been violated may cause the arrest of the supposed offender, and, if in doing so he acts in good faith, the law will protect him against an action for damages, although the accusation may in fact be unfounded. This rule is founded on grounds of public policy to encourage the exposure of crime, and the punishment of criminals, and when, therefore, the act of a citizen in thus enforcing the law is challenged, the court must determine the question when the facts are admitted or established as to whether he had probable cause for so doing, and not leave it to the arbitrament of a jury."

At the outset of his case, plaintiff offered, and there was received, the transcript of the proceedings in the justice court, which contains the information sworn to by defendant before the magistrate on March 27, 1906, and the warrant issued thereon, and upon which plaintiff was arrested on the 27th day of March, 1906, and on the next day was committed by the magistrate to the custody of the sheriff of the county. But it further shows that on April 25, 1906, a preliminary hearing was had before the magistrate upon the charge, and after an examination duly held according to law, at which the state appeared by the deputy prosecuting attorney for that county, and the plaintiff appeared in person and by his attorney, and after three witnesses has been examined on behalf of the state, and two on behalf of plaintiff including himself, he was held to answer at the next term of the circuit court for that county, and was admitted to bail in the sum of $250. This evidence, instead of showing the want of probable cause, the burden of showing which was upon plaintiff, makes, it would seem, a prima facie case of probable cause. "It is quite generally held," says Mr. Justice Wolverton, in Stamper v. Raymond, 38 Or. 16, 62 P. 20, "that, where proof was offered upon the examination which is deemed sufficient by the committing magistrate upon which to commit, his commitment accordingly will afford prima facie evidence of probable cause." The effect of the commitment as evidence of probable cause, however, may be overthrown by other evidence showing that it was obtained by false pretenses...