Eastman v. Keasor , 44 N.H. 518 ( 1860 )

Bellows, J.

The defendant, having caused the plaintiff to be indicted for selling without the defendant’s consent a wagon mortgaged to him by the plaintiff, the plaintiff having been acquitted upon the trial, brings his action on the case for malicious prosecution.

It appeared that it was in controversy whether the wagon sold by the plaintiff was the one which the parties understood was included in the mortgage, and whether it was owned by the plaintiff at the time of executing the mortgage. Under the circumstances, the defendant was allowed to testify that before the criminal prosecution he consulted two attorneys at law, and stated to them the facts as he understood them, and they advised him that the mortgage was good to hold the property mortgaged, and that it covered the wagon.

This evidence was introduced apparently to rebut the existence of malice, and to negative the want of probable cause; and the question is, whether it was admissible for that purpose. His direct testimony that he had no malice would seem, on the authority of Norris v. Morrill, 40 N. H. 402, to be competent; and it seems to be settled that it is competent to show that the defendant acted bond' fide upon the advice of counsel, the case being fully and fairly laid before him. Raverga v. Mackintosh, 2 B. & C. 693; Snow v. Allen, 1 Stark. N. P. 502; Hewlet v. Critchley, 5 Taunt. 277 ; Mitchell v. Jenkins, 5 B. & Ad. 588. This indeed is but the logical result of the necessity of making out the want of probable cause, which is defined to be such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty, as laid down by Shaw, C. J., in Bacon v. Towne, 4 Cush. 238. See, also, James v. Phelps, 11 Ad. & El. 483, 489; 2 Greenl. Ev., 454, 455, 457, and notes; 4 Stark. Ev., 911, et seq.; Green v. Brackett, 33 Me. 332; and accordingly it was held, in Bacon v. Towne, admissible to show that before the prosecution other persons had given the prosecutor information tending to create a belief of the guilt of the accused ; and so it is held the defendant may prove by the examining magistrate the testimony that was laid before him.

Upon these principles we think the evidence was competent. It is true the case does not state that the facts were fully laid before -the counsel; neither is the objection put or argued' upon that ground. Indeed the defendant’s testimony was that he stated the facts as he understood them.

But it is urged that this proof of the opinion of counsel should have been excluded, because the counsel themselves might have been called. This objection, however, can not avail the plaintiff, for the reason that it is the fact of the opinion having been given that is material, and therefore to be proved like any other fact, by any one who knows it. It is not introduced to prove that the plaintiff was in truth guilty, which would be clearly objectionable, but as tending to show that the defendant might in good faith and on reasonable grounds have believed him guilty.

The next question respects the admission of the testimony in regard to the harness, which was included in the same mortgage with the wagon; and the objection is, that proof of an attempt to secrete the harness from the defendant has no legal tendency to sustain the indictment; and this might be true, and still the testimony be admissible for another purpose, namely, to show the existence of probable cause in the mind of the defendant, and to rebut the charge of malice. It appears that before the prosecution was commenced, the prosecutor called upon the plaintiff and inquired for the harness, and was told by him that he did not know where it was; that a man had taken it from behind the door, and therefore the prosecutor sent to Dover and found it; and it appeared from the plaintiff’s own cross-examiuation that there was reason to suspect that he sent it there to secrete it from the defendant; and inasmuch as this harness was part of the property mortgaged with the wagon; and as a wagon had been sold by the plaintiff, which might have been the one mortgaged — although the evidence was conflicting on that point — we think that in determining the question of malice and probable cause, the jury might properly consider the plaintiff’s conduct in respect to the harness, and its natui’al effect upon the prosecutor’s mind.

The question was not whether the plaintiff was actually guilty, but whether the defendant had reasonable grounds to believe him guilty, and upon this principle evidence is admitted to show probable cause and want of malice, that would not be received to sustain the indictment; as, for example, the information that the prosecutor received before the prosecution was commenced, and the advice given by counsel; so, also, it has been held that the prosecutor may prove that the jury which acquitted the plaintiff doubted and hesitated for some time. 2 Greenl. Ev. 417. So, also, that, in addition to circumstances of suspicion, the character of the plaintiff was bad ; 2 Greenl. Ev. 488; although this may be open to doubt. We are, however, of the opinion that the evidence in respect to the harness was admissible for the purpose indicated.

The only question remaining is in respect to the testimony of Whipple, which seems to be explanatory of the plaintiff’s previous testimony, the whole having been, as we think, immaterial. The objection urged by the plaintiff’s counsel, that Whipple’s testimony was inconsistent with the facts in the case, furnishes no ground for setting aside the verdict; as this view would rather tend to confirm its want of materiality.

There must, therefore, be

Judgment on the verdict.