Stamper v. Raymond

• Decision Date: 13 August 1900
• Citation: 62 P. 20,38 Or. 16
• Parties: STAMPER v. RAYMOND et al.
• Court: Oregon Supreme Court

62 P. 20

38 Or. 16

STAMPER v. RAYMOND et al.

Supreme Court of Oregon

August 13, 1900

Appeal from circuit court, Umatilla county; S.A. Lowell, Judge.

Action by Jesse L. Stamper against W.W. Raymond and another. From a judgment on verdict for plaintiff, defendants appeal. Reversed.

This is an action for malicious prosecution. Essentially, it is alleged by the complaint that on August 22, 1899, the defendants maliciously conspired together to cause the arrest and imprisonment of the plaintiff, with the intent to injure him, and in pursuance thereof falsely, maliciously, and without probable cause instituted criminal proceedings against him before M.A. Ferguson, a justice of the peace for Adams district, in the county of Umatilla, Or., whereby they charged him with having on August 21, 1899, committed the crime of assault with a dangerous weapon, to wit, a shotgun upon the defendant Warren W. Raymond, and thereupon caused a warrant to be issued, and the plaintiff to be placed under arrest and imprisoned for the space of 10 hours; that thereafter, on August 28th, and after a hearing and trial plaintiff was acquitted of said charge and discharged from custody; that the costs of the proceeding were taxed to Raymond, and the prosecution thereby determined. The allegations of conspiracy, malice, and want of probable cause are denied by the answer; and for a further defense it is alleged that plaintiff did on the said 21st day of August 1899, assault the defendant Raymond with a dangerous weapon namely, a double-barreled shotgun, loaded with powder and shot, and should be arrested, tried, convicted, and sentenced therefor. The reply takes issue upon the allegations of assault, and, for a defense to the new matter, alleges that at the time designated the plaintiff was the owner and in possession of 1,344 sacks of wheat and 269 sacks of barley, then on his premises, and that the defendants wrongfully and unlawfully attempted in the nighttime to remove said grain against his consent; that, for the purpose of preventing such removal and protecting his property, he took and had in his possession a shotgun, which he held on his left arm, with the muzzle pointed away from the defendants, and, without attempting to use it, he directed them to desist from further interference therewith; and that these are the same acts alluded to in the defendants' answer. A trial was had before a jury under the issue thus tendered, and, the judgment being favorable to the plaintiff, the defendants appeal.

J.J. Balleray, for appellants.

Chas. H. Carter, for respondent.

WOLVERTON, J. (after stating the facts).

To support the action it is necessary to show that the prosecution complained of was instituted with malice and without probable cause. These are two essential and distinct ingredients, without the concurrence of which it cannot be maintained. The prosecution may have been without probable cause, but, if set in operation without malice, there can be no recovery in this action. So it is that, with whatsoever malice the prosecution may have been conceived, if the prosecutor had probable cause for proceeding with it he does not thereby lay himself liable to damages. To these ingredients may be added a third, namely, that the prosecution shall have terminated. The burden of proof is with the plaintiff to establish all these essential elements if he would succeed. Malice is ordinarily, perhaps exclusively, a question of fact for the jury, to be ascertained from the attendant facts and circumstances of the case, and, while it may be inferred from the facts which go to establish the want of probable cause, it does not follow as a necessary sequence. Hence it is not a conclusion that the court will declare, and the cases are rare if indeed they exist at all, where it becomes incumbent upon the court to direct the jury to find malice from such facts alone. The want of probable cause is a question of law for the court. Where the facts are admitted, it is the duty of the court to declare to the jury whether or not there is want of probable cause; otherwise, it should be left to the jury to determine whether certain controverted facts exist, they being instructed that upon their finding touching these facts will depend the question of want of probable cause. That is to say, as observed by Mr. Chief Justice Waldo in Gee v. Culver, 12 Or. 228, 6 P. 775, "the judge must say to the jury, 'I tell you, if you think so and so, there is a want of reasonable and probable cause.' " For a full discussion of the subject, see, also, Hess v. Baking Co., 31 Or. 503, 49 P. 803. Whether the circumstances relied on are true is a question for the jury, but whether, if true, they amount to want of probable cause, is a question of law for the court. There is no such thing as implied malice, or, rather, the doctrine of implied malice has no application in a case for malicious prosecution. There must be malice in fact, or actual malice, which relates to the state or condition of the mind of the person who caused the arrest or instituted the prosecution, which is, as we have seen, a question of fact for the jury to determine in the light of the peculiar circumstances surrounding and attending each particular case. It may proceed from a mind evilly disposed towards the person prosecuted, and may be manifested by acts indicating spite, hatred, and ill will, denoting a purpose to bring opprobrium or discredit upon him, to his detriment and injury; but there need be no personal ill will, desire for revenge, or other base and malignant purpose, and it may be inferred from any improper or unjustifiable motives which the facts disclose influenced the conduct of the party instituting the prosecution; and this comprehends any act done willfully, or knowingly and purposely, to the prejudice and injury of another, which is at the same time unlawful,--that is, has not the sanction of law. Gee v. Culver, 13 Or. 598, 11 P. 302. "Whatever," says McClellan, J., in Lunsford v. Dietrich (Ala.) 9 South. 308, "is done willfully and purposely, whether the motive be to injure the accused, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, is, in legal contemplation, maliciously done." Probable cause, as approved by the United States supreme court, "is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted." Wheeler v. Nesbitt, 24 How. 544, 16 L.Ed. 765. Mr. Sutherland defines it as "such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe, or to entertain an honest and strong suspicion, that the facts essential to the prosecution exist." 3 Suth.Dam. (2d Ed.) § 1239. Mr. Hilliard, after the discussion of many authorities bearing upon the rule, says: "Probable cause for instituting a prosecution is held to be such a state of facts known to and influencing the prosecutor as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably, and without prejudice upon the facts within the party's knowledge, to believe or entertain an honest and strong suspicion that the person accused is guilty." 1 Hil. Torts (3d Ed.) c. 16, § 18. Hawkins, J., in Hicks v. Faulkner, 8 Q.B.Div. 167, 171, defines it as "an honest belief in the guilt of the accused, based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed." And Stone, C.J., in Jordan v. Railroad Co., 81 Ala. 220, 8 So. 191, defines it as "such a state of facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably, and without prejudice, to believe *** that the accused is guilty." But, whatsoever may be the various shades of expression used by authors and jurists in attempting to give a technical definition of the term "probable cause," it depends upon the prosecutor's honest belief or conviction of guilt, based upon such facts as will justify the belief in the mind of a prudent and reasonable man (14 Am. & Eng.Enc.Law, 24); and it is upon the existence of such belief, based upon such facts and circumstances, that the question of probable cause rests, and not upon the actual guilt of the accused. 1 Hil.Torts (3d Ed.) c. 16, §§ 17a, 18a. With these preliminary observations relative to the law governing the case in general, we will proceed to a consideration of some of the errors specifically assigned.

The plaintiff, testifying in his own behalf, stated at the trial among other things, that he had lived upon the place then in his possession since 1896; that he purchased it from Raymond, one of the defendants, the fall before he moved on it; that he entered into a contract with him, first verbal, then written, therefor; and that he had raised a crop under it in the year 1899. The contract, being identified, was admitted in evidence, over objection, and the ruling of the court with respect thereto is assigned as error. The contract is made the basis of, and is incorporated into, a bond for a deed given by Raymond and wife to the plaintiff, and provides, among other things, that Stamper, who is designated as the first party, shall, in consideration of the conveyance of the premises described, to be made when certain conditions are performed, enter into...