Straus v. Young

• Citation: 36 Md. 246
• Parties: ISAAC STRAUS v. MARY ANN YOUNG.
• Decision Date: 18 June 1872
• Court: Court of Appeals of Maryland

36 Md. 246

ISAAC STRAUS v. MARY ANN YOUNG.

Court of Appeals of Maryland

June 18, 1872

APPEAL from the Superior Court of Baltimore City.

This was an action for malicious prosecution by the appellee against the appellant and his brothers Samuel and Leopold. The declaration contained two counts. The first alleged that the defendants appeared before John T. Gorsuch, a justice of the peace, and there falsely and maliciously, and without any reasonable or probable cause, charged the plaintiff with having feloniously stolen from them one pair of pantaloons and upon that charge they caused the said justice to grant his warrant for her arrest, and caused the said plaintiff to be arrested and imprisoned, &c., and then caused the said plaintiff to be brought before the said justice for trial which being had, she was fully acquitted and discharged. The second count alleged that the defendants falsely and maliciously, and without probable cause, charged the plaintiff with having committed a felony, and on that charge caused her to be arrested, &c. The plea was not guilty.

Exception: At the trial the plaintiff proved that the appellant, on the 7th of February, 1871, appeared before John T. Gorsuch, a justice of the peace, and made affidavit that he had given to the plaintiff five pair of pantaloons to be made, and that she had returned only four pair appropriating one pair to her own use, and craved the protection of the law against her; that the justice of the peace accordingly issued his warrant for her arrest. The plaintiff testified that on a Saturday evening in February 1871, she went to the store house of Straus Brothers, the defendants, to get a small balance of $1.35, due her from them, and more work; that Isaac Straus refused to pay her, but gave her two pair of pantaloons to make, and told her to come the following Monday morning; that she called, as requested, when Isaac Straus said she had two pair of pantaloons, one of which she had retained since August, 1870, (not those received on the Saturday evening,) and that until she returned them or paid $15 for them, he would not pay her the balance due; that she had stolen the pantaloons; that this charge she indignantly denied. That she went home, and in a short time an officer came to the house and told her he had a warrant for her, and she must appear at the office of the justice at 4 o'clock that afternoon, which she accordingly did. That the case was postponed to a subsequent day, when it was heard.

That at the trial of the case, Isaac and Leopold Straus and several of their employees were present and examined as witnesses for the prosecution, and on the conclusion of the examination Isaac Straus, who was very active in the prosecution, made a speech, urging her conviction. She was acquitted and discharged by the magistrate. She further testified that each pair of pantaloons was worth two or three dollars.

The defendant Isaac testified that the defendants were brothers and partners, trading under the name of Straus & Bro., and had been for the last several years engaged principally in the wholesale clothing business at No. 211 N. Gay street; that in August, 1870, they had a small lot of goods of a peculiar pattern which they gave out to three or four hands to be made up; that they usually employed from fifty to one hundred hands; that they discovered, on an examination of their books, that one pair of pantaloons of this peculiar pattern of goods was missing, and he concluded that the appellee had retained them. That having come to this conclusion, he put up a bundle, in January, 1871, containing five pair of pantaloons, in which he only put trimmings for four pair; that three pair had been cut with the same cut of the scissors, that is the scissors cut three plies of the cloth at the same time; that two pair of the pantaloons were cut of different sizes from the said three pair. That the bundle was thus put up in the presence of his brother Leopold and two of their employees, and it was put up in this manner to test with certainty whether he was right in his belief as to the plaintiff; he expected that she would call for trimmings for the pair for which none had been furnished, if she were an honest woman; he delivered the bundle to her son who called for it; she soon after returned four pair made up; he waited some three or four days, but she did not return the fifth pair; she called afterward on a Saturday to get a small balance that was owing to her, which he refused to pay, but gave her two pair of pants to make up, and told her to call on Monday, which she did, and demanded the balance due her; but he refused to pay until she had returned the two pair which she had received before the last two pair, and which she had not returned; that he did not say she had stolen them; that she denied the charge and immediately left; that he did not then leave the store, but sent the errand-boy after her, to ascertain where she lived; that after the return of the errand-boy he went to the magistrate's and made complaint, and asked for a search warrant to search her house.

The defendants then offered testimony tending to prove that said Isaac did not say that the plaintiff had stolen the pants, as she alleges he did, but that what he did say on the occasion was, that she retained two pair of pants the defendants had given her.

One of the defendants' witnesses testified that the demand of $15 was made; all his other witnesses, himself included, denied that any such demand was made.

The plaintiff thereupon offered the following prayers:

1. That if the jury find that Isaac Straus, one of the defendants, preferred the charge of larceny against the plaintiff, under oath, before John T. Gorsuch, a justice of the peace, and caused said justice to issue the warrant offered in evidence, by virtue of which she was arrested and brought before him, where, after a full examination of the preferred charge, she was acquitted and discharged, such acquittal and discharge are evidence, with the other evidence in the cause, of the want of probable cause; and that it is competent for the jury to infer malice from the want of probable cause, as the same is defined in the defendants' sixth prayer.

2. If the jury find from the evidence that the defendant, Isaac Straus, took an active part in the trial of the plaintiff before the justice, in procuring the attendance of witnesses against her, and in the examination of the witnesses, to bring about her conviction of the charge of larceny, and that she was acquitted and discharged by the justice, and that there existed no probable cause for such charge, it is competent for them to infer malice from such active participation and the other evidence in the case, provided they find that he did so participate.

3. That malice, in its legal sense, is any wrongful act done intentionally, without legal justification or excuse; it is not what is called malice in common acceptation, as ill-will against a person.

The defendants then prayed the Court to instruct the jury as follows:

1. That in actions of this kind it is incumbent upon the plaintiff to show that the proceeding against her was instituted maliciously and without probable cause, and that having failed to prove the absence of probable cause, she cannot recover.

2. That from the pleading and evidence in the case, the jury should find a verdict for the defendant, Samuel Straus.

3. That on the pleading and evidence the jury should find for the defendant, Leopold Straus.

4. That if the jury believe from the evidence in the case that the defendant, Isaac Straus, without the coöperation of either of the defendants, bona fide believing that the plaintiff had unlawfully withheld a portion of the goods of the defendants which she had received from them for the purpose of manufacturing the same into clothing, went to J. T. Gorsuch, Esq., a justice of the peace, and truthfully, to the best of his knowledge, stated to him, and without malice, what he conceived to be the cause of complaint, and that thereupon the justice expressed the opinion that the conduct stated constituted a criminal offence, and thereupon swore the said Isaac to said statement and issued the warrant referred to, that then the plaintiff is not entitled to recover.

5. That if the jury believe from the evidence in the cause that Isaac Straus, at the time he preferred the complaint offered in evidence before the magistrate against the plaintiff, believed and knew of the existence of facts and circumstances which, if true, would excite in a reasonable mind the belief that the charge he made before the magistrate was true, then they should find for the defendants, although they may believe that said Isaac was mistaken in so believing, and that the plaintiff was not guilty of any such charge.

6. That before the jury can find a verdict against any of the defendants, they must be satisfied that the defendant, Isaac Straus, had not probable cause to believe that the plaintiff had committed the act of which he, the said Isaac, complained before the justice, and was actuated by malice, and that the burthen of proof is on the plaintiff to show the absence of probable cause; that probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind that the plaintiff was guilty of the charge preferred against her by said Isaac to the said justice.

The first and second prayers of the plaintiff were granted by the Court, (DOBBIN, J.;) the third was conceded; the first and fourth prayers of the defendants were rejected, the second was conceded, and the third, fifth and sixth were granted. To the granting of the first and second prayers of the plaintiff, and to the rejection of the first and fourth...