Jordan v. Ala. Great So. R. R. , 81 Ala. 220 ( 1886 )

STONE, C. J.

— To maintain an action for a malicious prosecution, the prosecution must have been instituted, or instigated with malice, and without probable cause for believing the person prosecuted to be guilty. Both the malicious motive and the absence of probable cause must co-exist, to constitute a cause of action, and the birrden of proving each of these essential elements rests on the plaintiff, in the first instance. Malice itself is harmless, unless it is supplemented with the want of probable cause, but malice may sometimes be inferred from the want of probable cause. The latter, however, can not be inferred from the former — malice —no matter how virulent it may be. These principles have been so often asserted, have become so grounded and understood, that a citation of authorities would seem to be unnecessary. McLeod v. McLeod, 73 Ala. 42 ; Steed v. Knowles, 79 Ala. 446 ; 4 Wait Ac. & Def. 342, 346.

■ Malice may be defined to be any “ indirect motive of wrong.” Any motive, not a bona fide purpose, or, not associated with a bona fide purpose of bringing a person to punishment as a violator of criminal law, is a malicious motive on the part of the person who acts under its influence. If a case is trumped up for the purpose of annoyance, or, solely as a means of deterring or frightening other people, without intention of prosecuting it to judgment, there is, in such proceeding, no legitimate foundation for a criminal prosecution. Criminal laws were enacted for the promotion of public security and public repose, and should be executed in the same spirit. It is no violation of that spirit, however, which will stay the arm of the law, if the person who invokes its restraining or punitive power has a private grievance to redress, or a private malice to goad him on, provided a criminal offense has been committed by the accused, or, there is probable cause for believing he has committed such offense.

Probable cause is 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, on the facts within his knowledge, that the person accused is guilty. — 4 Wait Ac. & Def. 343.

There is a shading of this doctrine of probable cause, which may as well be stated here. Where a prosecutor has fully and fairly submitted to learned counsel all the facts which he knows, or by proper diligence could know to be capable of proof, and is advised that they are sufficient to sustain the prosecution, and acting in good faith upon such opinion he does institute criminal proceeding, he can not be held liable in an action for malicious prosecution, although the legal opinion given be erroneous. Such advice honestly sought and honestly acted on, supplies the indispensable element of probable cause. — McLeod, v. McLeod, 73 Ala. 42; Steed v. Knowles, 79 Ala. 446; 4 Wait Ac. & Def. 354. And such advice conscientiously sought and obtained tends to rebut malice as well.

In the trial of this cause in the Circuit Court, it was contended by the plaintiff], appellant here, that the defendant corporation had not been sufficiently diligent in obtaining information, before instituting the criminal prosecution, that if counsel, who investigated the facts, and advised the prosecution, had, while obtaining the information, inquired of the reputation of their informants, they would have learned it was bad, and, hence, could not have regarded the statements made to them as furnishing probable cause for belief of guilt. No authority is cited in support of this view, and we think such ruling would establish a dangerous precedent. In the absence of some known fact or circumstance calculated to arouse suspicion, we are unwilling to declare as a rule that information received should be treated with prima facie distrust. Perhaps the true rule is, that the law raises no presumption as to character, whether it is good or bad. It is certainly never presumed to be bad, in the absence of all fact or circumstance tending to show it is so. No certain rule can be laid down for believing or not believing information received. It depends on so many things, not the least potent of which are the reasonableness of the narrative, and the manner of the narrator, that we are unwilling to hazard the attempt.

We hold there was no testimony in this case, tending to show that Lively was in any sense the prosecutor, or that he instigated the prosecution. He may have given the information which led to the investigation by the railroad’s attorneys. It was the latter, however, who advised and caused the prosecution. True, Lively made the affidavit under which the warrant of arrest was issued. He did it, however, at the instance of the attorneys, and because he knew some of the requisite facts. He did not thereby make himself the prosecutor.

It is not our intention to apply the principles stated above to each of the several rulings in detail. The six charges given at the instance of defendant were each and all free from error. Of the charges requested by plaintiff, the first, fourth, fifth and sixth charges need no special comment. They were all rightly refused on the principles declared above.

The second charge asked has a single fault. It requires that to justify or excuse a prosecution, the motive of its institution must be single — “ for the purpose of bringing a person to justice.” According to that charge a prosecution is malicious, notwithstanding there may have been probable cause for its institution; nay more: notwithstanding the person prosecuted may have been guilty, if there was any motive for its institution, other than the simple purpose of bringing the person prosecuted to justice. If this be sound, then the action may be maintained on malice alone, without the other indispensable element, want of probable cause. Some of the authorities state the principle as the charge asserts it, but they can not be reconciled with the fundamental doctrine which governs this class of actions.

There is, as we have said, no testimony that any person other than the railroad corporation, through its authorities, instituted the prosecution against Jordan. Charge 3 asked by plaintiff, although asserting a correct principle of law, was abstract, and rightly refused on that account. — 3 Brick. Dig. 113, § 106.

The Circuit Court erred in allowing the testimony of the witness, Lively, as to threats he had heard Canterbury make, and in allowing the testimony, that Fred Jones had testified on the criminal trial, to certain propositions made to him by Canterbury. If there was any testimony tending to prove a conspiracy, or common purpose, between Canterbury and Jordan, it was the testimony of the single witness, George White, which tended to show that they were both present engaged in deranging the defendant’s railroad track. The threats proved were made, if at all, some time before the track was tampered with, and the alleged proposition to Jones some time afterwards. There was no proof tending to show the formation of a common purpose at, or before the alleged threats were made; and the alleged proposition can not be interpreted as promotive of a purpose to tamper with the railroad track. This was not proper testimony against Jordan, and hence should not have been received on this trial.

We find no other error in the record.

Reversed and remanded.