Stainer v. San Luis Valley Land & Min. Co.

• Decision Date: 14 December 1908
• Docket Number: 2,765.
• Citation: 166 F. 220
• Parties: STAINER v. SAN LUIS VALLEY LAND & MINING CO.
• Court: U.S. Court of Appeals — Eighth Circuit

166 F. 220

STAINER v. SAN LUIS VALLEY LAND & MINING CO.

No. 2,765.

United States Court of Appeals, Eighth Circuit.

December 14, 1908

Jesse R. Allphin (Benjamin C. Hilliard and B. A. Roloson, on the brief), for plaintiff in error.

Ernest Knaebel (J. F. Vaile, Henry McAllister, Jr., and William N Vaile, on the brief), for defendant in error.

Before HOOK and ADAMS, Circuit Judges, and PHILIPS, District Judge.

ADAMS Circuit Judge.

This writ of error seeks a review of a judgment of the Circuit Court directing a verdict for the defendant on an inspection of the pleadings by the court. The verdict was directed and judgment entered because in the opinion of the court the complaint failed to state a cause of action. The action was for malicious prosecution. The complaint alleged in substance and effect that defendant, the San Luis Valley Land & Mining Company, maliciously and without any reasonable or probable cause procured the issuance of a warrant by a justice of the peace and caused plaintiff to be arrested thereon on the double charge of stealing certain flasks of quicksilver and purchasing the same knowing them to have been stolen; that an examination followed by the magistrate, resulting in binding plaintiff over to appear before the district court of Saguache county Colo., to answer the charge of buying the quicksilver knowing it to have been stolen, and discharging him on the accusation of stealing; that plaintiff appeared before the district court pursuant to the condition of his bond, when the defendant caused two informations to be filed against him charging him with having committed the two specified offenses; that the district court quashed one of the informations, and put the plaintiff to trial before a jury on the other, namely, purchasing the quicksilver knowing it to have been stolen, and that this trial resulted in his acquittal and discharge; that defendant afterwards caused an information to be filed against plaintiff in the district court charging him and two other persons with having committed the same two offenses, and caused their arrest and trial thereon, which resulted in an acquittal and discharge that defendant afterwards caused another information to be filed against plaintiff and others charging them with having conspired to commit the unlawful act of stealing the quicksilver in question, and caused plaintiff to be arrested and tried thereon, and that he was acquitted and discharged.

Each and all of the acts so charged to have been done by defendant are alleged to have been done maliciously and without any reasonable or probable cause whatever.

Two prominent questions are presented by the assignment of errors. They relate to the force and effect to be given to the judgment of the examining magistrate binding plaintiff over for trial, and to the judgment of the district attorney in filing the informations against plaintiff.

Because it appears in the complaint that plaintiff was bound over by the magistrate to answer the charge made against him, and that the district attorney, who under the statutes of Colorado alone determines whether to file an information against one charged with a crime or not, did conclude to file the several informations against plaintiff after he was acquitted of the charges preferred before the magistrate, defendant's counsel contend that the complaint made a prima facie showing of probable cause for each and all the prosecutions of plaintiff, and that this prima facie showing was not overcome by other averments of the complaint, and as a result that the court committed no error in directing a verdict for the defendant.

It is well settled that the binding over by an examining magistrate constitutes prima facie evidence of probable cause for the prosecution of the accused; but our attention has not been called to any case, neither have we in our investigation found any, except the case of Giusti v. Del Papa, 19 R.I. 338, 33 A. 525 (upon which defendant strongly relies), which imputes to the fact of binding over any greater force or effect than that of presumptive or prima facie evidence of probable cause. That case, as first decided, held that the binding over constituted conclusive evidence of probable cause, but on rehearing the court nominally receded from that view, but held that a declaration that defendant prosecuted plaintiff maliciously and without probable cause stated no cause of action, provided it appeared in the declaration without any showing of inducing fraud, perjury, or other unfair means that the plaintiff was bound over and afterwards indicted by the grand jury. It is there said:

'The question is one of pleading, and the allegation of facts which are prima facie evidence of probable cause necessarily stands as conclusive until something further is alleged to rebut the presumption arising from that allegation.'

This may be true. But is not the allegation that the defendant prosecuted plaintiff 'maliciously and without any reasonable or probable cause whatever' such an allegation? It is said in the Giusti Case that 'the averment of want of probable cause by itself is not a statement of fact, but only a conclusion of law. ' With due deference to the distinguished court which rendered that decision, we find ourselves unable to agree with this statement. It seems to us that an allegation of want of probable cause is an allegation of an ultimate fact, a condensed expression which by practice and established usage is made to signify that defendant did not have a reasonable ground to believe that plaintiff was guilty, based upon facts and circumstances sufficiently strong in themselves to induce such a belief in the mind of an ordinarily prudent person. The Supreme Court of the United States in Stewart v. Sonneborn, 98 U.S. 187, 194, 25 L.Ed. 116, said:

'The question of probable cause is a mixed question of law and of fact. Whether the circumstances alleged to show it probable are true, and existed, is a matter of fact; but whether, supposing them to be true, they amount to a probable cause, is a question of law. * * * It is, therefore, generally the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it proves, with instructions that the facts found amount to proof of probable cause, or that they do not.'

To the same effect is the case of Mercantile Co. v. Kyes, 9 Colo. App. 190, 48 P. 663; Firer v. Lowery, 59 Mo.App. 92.

Whether an accused person be bound over or discharged by an examining magistrate is evidence only tending to prove or disprove the ultimate issuable fact-- the existence or nonexistence of probable cause for the prosecution. It is made by law prima facie evidence of such probable cause, but that is only a presumption which is disputable. In other words, a 'binding over' is a fact which the jury may consider together with all other pertinent facts disclosed in evidence in determining the issue of probable cause, and in the absence of any other countervailing evidence it is sufficient to establish it; but, like other rebuttable presumptions, it yields to the force and effect of the actual facts when proved. Wabash R. Co. v. De Tar, 73 C.C.A. 166, 141 F. 932, 4 L.R.A. (N.S.) 352; Rich v. Chicago, M. & St. P.R. Co., 78 C.C.A. 663, 149 F. 79.

Accordingly, we conclude that a complaint which by clear averment charges that defendant maliciously and without any probable cause whatever caused plaintiff to be prosecuted states a good cause of action, notwithstanding the fact that a recital or averment is found in the complaint that in the course of the prosecution plaintiff was bound over by an examining magistrate.

It is also contended that, when a complaint discloses a binding over by a magistrate, that action must be attacked for fraud, perjury, or other unfair means in securing it in order to negative its effect and state a cause of action, and our attention is called to the following authorities in support of the contention: Giusti v. Del Papa, supra; Burt v. Place, 4 Wend. (N.Y.) 591; Spring & Stepp v. Besore, etc., 12 B.Mon. (Ky.) 551, 555; Crescent Live Stock Co. v. Butchers' Union, 120 U.S. 141, 7 Sup.Ct. 472, 30 L.Ed. 614; Phillips v. Village of Kalamazoo, 53 Mich. 33, 18 N.W. 547; Boogher v. Hough, 99 Mo. 183, 12 S.W. 524; Olson v. Neal, 63 Iowa, 214, 18 N.W. 863. An examination of these and other cases cited by defendant discloses that all of them except the Giusti Case deal with the judgment of conviction by a court possessed of jurisdiction to hear and determine the guilt or innocence of the accused and to inflict punishment if guilt be found. In these and many other cases it is held that the conviction of a person charged with an offense by a court competent to convict and punish, or a decree in a civil action against a defendant, whether the conviction or decree is set aside on appeal or not is conclusive evidence of probable cause in an action for malicious prosecution unless the judgment of conviction or the decree is successfully challenged for fraud, perjury, or some other unfair means resorted to in securing it. With that doctrine we make no dispute. Under familiar principles a final judgment can be attacked only for fraud or kindred reasons. But we are unwilling to accord to a binding-over order made by an examining magistrate that degree of conclusiveness. His function is exhausted, not when he pronounces a final judgment of guilt or innocence of the accused, as in case of a trial on that issue, but when he pronounces the evidential fact that there is or is not probable cause to believe him guilty.

The cases giving peculiar force and effect to a judgment of final conviction do not, in our opinion,...