Tolman v. Phelps

Mr. Justice James

delivered the opinion of the court,

We think that a new trial must be granted in this case on a single ground. The testimony on both sides is fully set forth in the record. On that testimony the court below was asked for instructions, some of which were granted and some refused; and finally the court charged the jury with great fullness. At the close of the charge, the defendant excepted to it, claiming that it left the question of what constitutes probable cause to the jury.

The court went over all the circumstances; but it is complained in the third exception that it left the jury to determine what was probable cause. That, we think, was really the effect of the whole instruction, though some portions of the charge began to tell the jury whether this or that fact constituted probable cause. But even after the court had touched upon the effect of particular facts, the jury were, it might be said, affirmatively given to understand that they might make up their minds as to whether the facts might constitute probable cause.

The law in this respect was settled hy this court in another case — Coleman vs. Heurich, 2 Mackey, 189 — it is not necessary to go into authority beyond that. It is settled here, and everywhere, that it is for the court to tell the jury what faets would constitute probable cause. Substantially, the court only told the jury the rule of law, that probable cause was what a reasonable, intelligent man would think justified him in making the charge. It is not everybody ■who is supposed to know, neither prosecutor nor jury, what facts make up a crime, and therefore it is necessary that the court should tell the jury what facts justify a person in alleging crime. The court did not follow that course, but really gave the jury to suppose that they might examine all that testimony and make up their own minds as to what would constitute probable cause.

There are other points made in the ease, hut it is enough to say that this clearly misled the jury, and the judgment must be reversed and a new trial had.