Mann v. Cowan ( 1898 )

Opinion by

Beaver, J.,

That the inherent rights of the plaintiff to his liberty and reputation, guaranteed by the constitution, were violated was scarcely denied by the defendants. The plaintiff was placed in charge of an officer by the defendants, without process or warrant, was afterward regularly arrested upon a warrant for forgery, was taken before a justice of the peace and, in default of bail, was committed to the jail of Butler county, where he remained for about forty-eight hours. Upon a hearing had before the justice, he was discharged. The plaintiff’s testimony clearly discloses these facts and the additional significant one that neither of the defendants had taken counsel in regard to the prosecution. The burden of showing probable cause was, therefore, cast upon the defendants. This they utterly failed to show and the jury was unquestionably justified in finding lack of probable cause and the malice which must concur to entitle the plaintiff to a verdict: Dietz v. Langfitt, 63 Pa. 234; Ritter v. Ewing, 174 Pa. 341.

The case was fairly, fully and ably tried, the rulings of the court were in accordance with law and quite as favorable to the defendant as he had any right to ask, all of the questions of law propounded by him in the shape of points, with a single exception, having been answered unqualifiedly in his favor, and the exception having been affirmed with a qualification which was entirely proper under the circumstances.

The first assignment of error is as to the. offer of testimony in regard to a transaction between the Hinterminster Organ Co. and one Worthington. It is not alleged in the offer that the plaintiff had anything whatever to do with the transaction. He was in no way responsible for it and was not to be prejudiced by it. The motives which influenced Cowan in beginning the prosecution for forgery were to be shown by facts which were relevant to the issue joined between him and the plaintiff. The offer contained nothing relevant to this issue and was properly rejected. If the Hinterminster Organ Co. or the agent who represented it in the alleged transaction with Worthington had been the plaintiff, the conclusion might have been different.

The second assignment of error is based upon a sentence taken from a paragraph in the general charge of the trial judge. The portion of the charge assigned for error would seem to take it for granted that Coast was guilty and that, if Cowan was a party to the arrest, that he was equally guilty, but the charge, taken as a whole, conveys no such impression. In the following sentence the court says: “ In this case the law requires the plaintiff to make out the case. He must prove, first, the arrest and the imprisonment, or that he had given- bail and, second, that there was no probable cause and that there was malice in the conduct of the parties to the case or parties making the information.” The charge, taken as a whole, was not objectionable in this respect, nor is it open to legitimate criticism in other respects as claimed by the appellant in the third assignment. No undue emphasis was given to the plaintiff’s testimony. .The main facts of the case were scarcely denied.

The fourth and fifth assignments are equally devoid of merit. Although the exact language of the witnesses may not have been employed by the court, there was not such variance between the language of the witnesses and the statement by the court of the substance of their testimony as to mislead the jury. The jury was told several times in the course of the charge that the testimony was for them, the trial.judge qualifying his statements of the evidence by such expressions as “ The plaintiff and the defendants do not agree exactly. You heard what the plaintiff said and what the two defendants said. I do not recollect what Mr. Dallas said as to that. You have a right to inquire. You heard what he said and what Mr. Coast said.” All this is clearly within the rule that a trial judge is not held to a literal and verbatim statement of the testimony of a witness. It is only necessary that he should give correctly the substance of the testimony. If a serious mistake in quoting testimony is made by the judge, counsel should call his attention to it immediately after the charge. We do not think there was such a mistake here, as required the counsel to call the attention of the judge to it but it was not done and should not be complained of now: Krepps v. Carlisle, 157 Pa. 358.

The other assignments have been sufficiently disposed of by what has been already said.

The jury had full knowledge of the facts. They had clear and competent instruction as to the law. There was nothing in the charge of the court, taken as a whole, which tended to prejudice the rainds of the jury. There was no substantial misstatement of the facts by the trial judge. The verdict was fully justified by the facts and was reasonable in amount. It ought to stand.

Judgment affirmed.