Tompson v. Mussey

• Decision Date: 01 May 1825
• Citation: 3 Me. 305
• Parties: TOMPSON v. MUSSEY
• Court: Maine Supreme Court

3 Me. 305

TOMPSON v. MUSSEY

Supreme Judicial Court of Maine, Cumberland

May, 1825

[Syllabus Material] [Syllabus Material]

THIS was an action of trespass on the case, in which the plaintiff alleged that the defendant had maliciously, and without probable cause, procured him and two other assessors of the town of Standish to be indicted for not making out a correct alphabetical list of voters in said town previous to the annual meeting in March 1823; and for not being in session in some convenient place to receive evidence of the qualifications of persons whose names were not on such list and for not giving public notice of such session in the warrant for calling the town meeting; of which they were acquitted.

At the trial, which was upon the general issue, before Weston J. it was proved that no notice of the time and place when and where the assessors would be in session, to receive evidence of the qualifications of persons whose names were not on the list of voters, was inserted in the copies of the warrant which were posted up, notifying the town meeting.--And the county attorney, Mr. Fitch, testified that when he drew the indictment, he gave it as his opinion to the defendant that the law required such notice to be inserted in the warrant.

It was also proved that such notice was posted up, on a separate piece of paper, adjoining to, or near, each of the copies of the warrant put up in the town.

The Judge instructed the jury that if, from the whole evidence, they were satisfied that the defendant knew that the notice was thus posted up, although it was not inserted in the copies of the warrant, and did not state this fact to the grand jury, as he was bound to do, he being a witness before them, and it appearing in evidence that the indictment was found upon his testimony, probable cause was not made out.--But that, if it did not appear that he knew the fact that notice was so posted up, there was then so much color for the prosecution, as well from the terms of the statute, as from the opinion of the county attorney, that probable cause was made out.

On the subject of damages he instructed the jury that there was no fixed rule or standard by which to estimate them. It would be for the jury to determine the amount, in the exercise of a sound discretion, taking into consideration the expense to which the plaintiff had been subjected, his trouble and anxiety, and the ignominy of being arraigned at the bar of justice as an offender against the laws.

It appeared from a vote of the town of Standish that they assumed the defence of the indictment against their assessors, " saving to the town all remedies against said selectmen and assessors for gross and wilful negligence, in the discharge of their duty as such." And it was thereupon urged by the counsel for the defendant that the plaintiff's expenses in defending himself against the indictment ought not to be taken into the estimate of damages. But the Judge instructed the jury that they ought to be estimated, notwithstanding that vote, if the plaintiff was entitled to any damages.

The jury hereupon returned for the plaintiff a verdict of eight hundred dollars; which was taken subject to the opinion of the Court upon the correctness of the Judge's instructions. The defendant also moved the Court to set aside the verdict because the damages were excessive.

Judgment on the verdict.

Greenleaf and Adams, for the defendant, contended that upon the evidence in the case the plaintiff was indictable, and ought to have been convicted. By the Stat. 1821, ch. 115, sec. 1 and 14, it is made the duty of selectmen and assessors to be in session at some convenient place, and to give public notice thereof " in the warrant" for calling the town meeting. The law being thus explicit, an inspection of the warrant was all that was necessary to determine whether it had been complied with, or not. If the defendant was wrong in supposing that a notification posted up in another place was not a notice inserted in the warrant; yet the official opinion of the county attorney to the same effect ought to protect him from prosecution. Both these considerations, and the fact that the traverse jury retired and deliberated on the case, are relied on to prove probable cause. Smith v. McDonald 3 Esp. 7. Lilwall v. Smallman Selw. 946. Bull. N. P. 14. Leigh v. Webb 3 Esp. 165. 1 Wils. 232. Peckham v. Whitney 15 Mass. 243. Jones v. Gwynn Gilb. Rep. 185. Kirtley v. Deck 2 Munf. 18.

But this was not a point for the defendant to make out. In the matter of probable cause, the onus probandi is on the plaintiff, to shew the want of it; --yet the Judge treated this as the duty of the defendant, which may have led to the verdict against him. Anon. 6 Mod. 73. Golding v. Crowle Bul. N. P. 14. Purcell v. McNamara 1 Camp. 199. 9 East 361. Sykes v. Dunbar 1 Camp. 202, note. Inceldon v. Berry ib. 203. Munns v. Dudont 2 Brown's Rep. app. 61. 4 Hall's Law Jour. 107. Cox v. Worrall Yelv. 105, note.

Further, the jury were instructed that the defendant was bound, at all events to state to the grand jury that the notice was posted on another paper; --whereas, having good reason to believe it immaterial, it should have been left to them to determine whether he suppressed the fact designedly, or honestly omitted to state it.

They also contended that this was an action not to be favored; --Savill v. Roberts 1 Salk. 15. 2 Esp. 536,--and that the damages were excessive. The town had stipulated to reimburse the plaintiff's expenses; he attended but one term; and the indictment involved no imputation whatever upon his moral character. The term " ignominy" was inapplicable to his trial, and tended to mislead the jury. Sampson v. Smith 15 Mass. 365. McConnell v. Hampton 12 Johns. 234.

Fessenden and Deblois, for the defendant, argued that a literal compliance with the terms of the statute was not in the power of assessors; since they have no control over a warrant for a town meeting, which is issued by the selectmen. The reference therefore in sec. 14, to the first section of the Stat. 1821, ch. 115, must be understood to relate to the convenient place mentioned in the latter section, and not to the manner of giving the notice. They did all in their power to give notice; and this the defendant well knew, but wilfully suppressed, as the jury have found.

But the defence is not placed on the existence of facts and circumstances tending to excite a reasonable suspicion of guilt; but on a misconception of the law. This, however, is no ground to justify any malicious prosecution. Waterer v. Freeman Hob. 266. 1 Salk. 14, note. Robinson v. Chambers 2 Stra. 691. Goslin v. Wilcock 2 Wils. 302. Weeks v. Fentham 4 D. & E. 247. Hewlett v. Crutchley 5 Taunt. 277. The case of Leigh v. Webb 3 Esp. 165, is different from this, because there the mistake was that of the magistrate, and not of the prosecutor.

As to the deliberation of the traverse jury, that fact forms no part of the case reserved; and if it did, it would be of no importance, unless the evidence on which they deliberated was other than that of the prosecutor himself. If it were otherwise, no malicious prosecutor could be punished, while he retained enough of character to induce a single juror to hesitate whether to believe him or not. But the position of the defendant on this subject is not founded in authorities, as is apparent from Gilbert v. Burtenshaw Cowp. 230. Farmer v. Darling 4 Burr. 1971.

Against the motion to set aside the verdict for excessive damages, they insisted that however Judges may have speculated on this question, it would be found that they had never set aside a verdict for excessive damages, unless the case furnished in itself some principles by which they could be estimated by the Court; or unless it was manifest that the jury had grossly misunderstood the case, or had acted from intemperate passion and prejudice, plainly apparent; --traits which this case did not disclose. To this point they cited Leman v. Allen 2 Wils. 160. Huckle v. Money 2 Wils. 205. Gilbert v. Burtenshaw Cowp. 230. Beardmore v. Carrington 2 Wils. 244. Wilford v. Berkley 1 Burr. 609. Duberley v. Gunning 4 D. & E. 651. Redshaw v. Brook 2 Wils. 405. Brun v. Hawkins 3 Wils. 61. Ducker v. Wood 1 D. & E. 277. 2 Stra. 940. Chambers v. Caulfield 6 East 244. Coffin v. Coffin 4 Mass. 1. Benson v. Frederick 3 Burr. 1845. Tillotson v. Cheetham 2 Johns. 74. Ogden v. Gibbons 2 South. 538.

OPINION

MELLEN, C. J.

The counsel for the defendant contends that the neglect charged in the indictment against the plaintiff was a clear and direct violation of a well known law; and as it was not and could not be pretended that notice had been given, in the manner the statute directed, these facts of themselves furnished satisfactory proof of probable cause; --and he further contends that the opinion delivered to the defendant by the attorney for the State was proof of probable cause and that it was the duty of the plaintiff to furnish proof of the want of probable cause, and that the onus was not on the defendant to show that there was probable cause. In the discussion and application of these principles several questions have been examined. Some of them need not be re-examined and decided by us. For instance, it is unnecessary to determine whether the opinion of the county attorney was, under the circumstances of this case, proof of probable cause; inasmuch as the Judge decided that point in favor of the defendant, if the jury should acquit him of the alleged suppression of an important fact in his testimony before the grand jury; but this they have not done. As the defendant therefore has had the benefit of this principle, so far as the facts of the case would justify the Court and jury in...