Saunders v. Baldwin

• Citation: 71 S.E. 620,112 Va. 431
• Parties: SAUNDERS. v. BALDWIN.
• Decision Date: 08 June 1911
• Court: Supreme Court of Virginia

112 Va. 431

71 S.E. 620

SAUNDERS.

v.BALDWIN.

Supreme Court of Appeals of Virginia.

June 8, 1911.

1. Pleading (§ 204^*)—Demurrer to Declaration Containing Good Count—Effect.

A demurrer to the declaration as a whole, containing a count stating a cause of action, is properly overruled.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 486-490; Dec. Dig. § 204.*]

2. Malicious Prosecution (§ 24*)—Termination of Criminal Prosecution—Evidence —Admissibility.

In an action for malicious prosecution, evidence of the acquittal of plaintiff is admissible merely to show the termination of the criminal prosecution, and not to show probable cause.

[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. § 50; Dec. Dig. § 24.*]

3. Malicious Prosecution (§ 21*)—Defenses —Reliance on Advice of Attorney.

The advice of a reputable attorney, sought and acted on in good faith, is probable cause as a matter of law, and is a complete defense to an action for malicious prosecution for instituting a criminal prosecution.

[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 40-44; Dec. Dig. § 21.*]

4. Malicious Prosecution (§ 24*)—Defenses —Judgment of Conviction—Reversal on Appeal—Effect.

A judgment of conviction by a justice or other trial court is conclusive evidence of probable cause for instituting the prosecution, though the conviction has been reversed on appeal or writ of error, unless the conviction was procured through fraud, or by means of testimony known to be false.

[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. § 53; Dec. Dig. § 24.*]

5. Malicious Prosecution (§ 47*)—Actions—

Declaration—Requisites.

A declaration in an action for malicious prosecution, which alleges the conviction of plaintiff in a criminal prosecution instituted by defendant, must, to state a cause of action, aver that the conviction was procured by the defendant through fraud, or by testimony which he knew to be false.

[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. § 91; Dec. Dig. § 47.*]

Error to Circuit Court, Mecklenburg County.

Action by D. E. Baldwin against G. A. Saunders. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.

E. P. Buford, for plaintiff in error.

Faulkner & Faulkner, for defendant in error.

BUCHANAN, J. The defendant in error, D. E. Baldwin, was arrested, tried, and found guilty of petit larceny upon a warrant issued by a justice of the peace of the county of Mecklenburg, upon the complaint of G. A. Saunders, the plaintiff in error. Upon appeal to the circuit court of that county, the judgment of the justice was reversed, and the accused acquitted. He thereupon instituted his action of trespass on the case against Saunders for malicious prosecution.

Upon the trial of the cause there was a verdict and judgment against the latter. To that judgment this writ of error was awarded.

The trial court overruled a demurrer to the declaration, and to each count thereof. This action of the court is assigned as error.

The declaration contains two counts. It is not denied here that the second count states a cause of action. The demurrer to the declaration as a whole, and to the second count, was therefore properly overruled.

The objection made to the first count is that although the want of probable cause is alleged for the complaint and proceedings mentioned therein, yet that the judgment of the justice of the peace, which is averred, although reversed, and the accused acquitted, is conclusive evidence of the existence ofprobable cause, in the absence of averment that such judgment was procured by evidence known by the defendant (Saunders) to be false. This objection will be considered in disposing of the exception of the defendant to the action of the trial court in refusing to give instruction No. 3 offered by the defendant.

That instruction is as follows: "If the jury believe from the evidence that the defendant caused the warrant mentioned in the declaration to be issued against the plaintiff, and that the plaintiff upon his trial before the justice of the peace on said warrant was convicted by the judgment of the justice, such conviction is conclusive evidence of probable cause, and the jury should find for the defendant, unless they further believe from the evidence that the defendant procured the conviction of the plaintiff before said justice by means of evidence known to said defendant to be false, or that such conviction was procured through the fraud of the defendant."

That instruction, as does the demurrer to the first count of the declaration, raises the question whether or not, in an action for malicious prosecution, the conviction of the plaintiff of the offense charged, which judgment of conviction has been reversed upon appeal and the accused acquitted, is conclusive or only prima facie evidence that probable cause existed for such prosecution, unless such conviction was procured by the defendant through fraud or by means of evidence which he knew to be false.

This question has been passed on by many of the courts of this country, and different conclusions reached. Some of the courts, as in the state of North Carolina, seem to hold that such a judgment is conclusive evidence of probable cause, even though unfairly obtained. Griffis v. Sellars, 20 N. C. 315; Price v. Stanley, 128 N. C. 38, 38 S. E. 33, 34. In the courts of some of the other states, as in Connecticut, Iowa, and Minnesota, such a judgment is deemed merely prima facie evidence of probable cause. Goodrich v. Warner, 21 Conn. 432; Moffatt v. Fisher, 47 Iowa, 473; Skeffington v. Eylward, 97 Minn. 244, 105 N. W. 638, 114 Am. St Rep. 711. In the great majority of the jurisdictions which have passed upon the question, such a judgment is held to be conclusive evidence of probable cause, unless (as is the rule in most of the cases) such judgment was procured by fraud or undue means on the part of the defendant. See Crescent City, etc., Co. v. Butchers', etc., Co., 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614; Bacon v. Towne, 4 Cush. (Mass.) 217; Morrow v. Wheeler & Wilson, etc., Co., 165 Mass. 349, 43 N. E. 105; Herman v. Brookerhoff, 8 Watts (Pa.) 240; Cooper v. Hart, 147 Pa. 594, 23 Atl. 833; Burt v. Place,. 4 Wend. (N Y.) 591; Palmer v. Avery, 41 Barb. (N. Y.) 290; Spring & Stepp v. Besore 12 B. Mon. (Ky.) 551; Kaye v. Kean, 18 B. Mon. (Ky.) 839; Payson v. Caswell, 22 Me. 212, 226; Thomas v. Muehlmann, 92 Ill. App. 571; Adams v. Bicknell, 126 Ind. 210, 25 N. E. 804, 22 Am. St. Rep. 576; Holliday v. Holliday, 123 Cal. 26, 55 Pac. 703; Hartshorn v. Smith, 104 Ga. 235, 30 S. E. 660; Griffis v. Sellars, 19 N. C. 492, 31 Am. Dec. 422; Boogher v. Hough, 99 Mo. 183, 12 S. W. 524; Welsh v. B. & P. R. Corp., 14 R. I. 609; Root v. Rose, 6 N. D. 581, 72 N. W. 1022; Hope v. Everett, 17 Q. B. Div. 338; Reynolds v. Kennedy, 1 Wils. 232; Newell on Malicious Prosecution, pp. 299, 300; 1 Cooley on Torts (3d Ed.) 333, 334; 2 Greenleaf on EV. (15th Ed.) § 457; Freeman's note to Ross v. Hixon, 26 Am. St. Rep. 142, 143; 3 Law-son's Rights and Remedies, § 1093; 26 Cyc. 39, 40; 19 Am. & Eng. Enc. L. (2d Ed.) 666-7; note to Wells v. Parker, 6 Am. & Eng. Ann. Cas. 261.

The precise question involved in this case and now under consideration has never been raised and passed upon by this court in any case officially reported. In the case of Blanks v. Robinson, 1 Va. Dec. 600, it was held that such a judgment was merely prima facie evidence of probable cause. That case was never officially reported and bears internal evidence, as it seems to us, that the question involved was not very carefully considered. If it had been, the learned judge who delivered the opinion of the court would not, we think, have supposed that the same question was involved in that case as was passed upon in Womack v. Circle, 32 Grat. 324, or that the conclusion reached was in accord with the weight of authority on the subject. The opinion is a very short one, and relies chiefly upon the reasoning of the dissenting opinion in the case of Womack v. Circle.

The question in the last-named case was not the same as that involved in Blanks v. Robinson. The action of the justice in Womack v. Circle, held to be conclusive evidence of probable cause, was a proceeding under statutes now found in chapter 191 of Pollard's Code of 1904; by which, upon complaint made to a justice or other conservator of the peace that there is good cause to fear that a person intends to commit an offense against the person or the property of another, the justice shall issue his warrant, and when the accused is brought before him and the witnesses heard, if he be of opinion that there is good cause for the complaint, he may require of the accused a recognizance to keep the peace and be of good behavior. The accused is, however, given the right of appeal to the court having jurisdiction of appeals from such justice, which court upon the hearing may affirm, or reverse the action of the justice and dismiss the complaint. In that case the justice was of opinion that there was good cause for the complaint and bound the accused over tokeep the peace, etc. Upon appeal the county court held that there was not good cause for the complaint, and discharged the accused. The only question involved before the justice and the county court was whether or not there was good cause for the complaint. Ths justice held that there was; the county court, that there was not. In such a case there is much to be said in favor of the view of the dissenting judges, that the opinion or judgment of the justice, that there was good cause for the complaint, ought not to be held as conclusive, but merely prima facie, evidence of probable cause, since the county court, in passing upon the identical question, had been of the opinion that there was not good cause for the complaint.

In the case of Blanks v. Robinson, where the warrant was for petit larceny, the justice was not merely of the...