Smith v. Ege

The opinion of the court was delivered, May 24th 1866, by

Strong, J.

Though there are four assignments of error, they present but one question. It is whether, if the evidence submitted to the jury was believed, probable cause for the prosecution against the plaintiff had been shown. As he had been discharged by the examining magistrate, the-burden of showing affirmatively that there was probable cause rested upon the defendant, and the Court of Common Pleas was of opinion that he had given sufficient evidence to establish it. There is always a presumption in favour of the correctness of the decisions made by Courts of Common Pleas, and hence, he who complains of error, must give to us the means of determining with certainty that error has been committed. We cannot know whether probable cause for a criminal prosecution has been shown, unless we are accurately informed what evidence was given. It was therefore incumbent upon the plaintiff in error to spread before us the whole evidence duly certified, or as agreed upon by the attorneys of both parties. Without this, we can in no such case as the present, conclude there was a mistake in affirming that the defendant had probable cause for instituting the prosecution. We have now no such exhibition of the proofs, and the parties are not agreed respecting it. But looking to so much as is presented by the paper-book, we think the court was not in error.

Probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting. It has been variously defined as such a suspicion as would induce a reasonable man to commence a prosecution, Cabanes v. Martin, 5 Dev. 454; or a reasonable ground of suspicion, supported by circumstances sufficient to warrant a cautious man in believing that the party is guilty of the offence, Munns v. Dupont, 3 Wash. C. C. 31; or as in our own oases, a deceptive appearance of guilt arising from facts and circumstances misapprehended, or misunderstood, so far as to produce belief: Seibert v. Price, 5 W. & S. 439, and Beach v. Wheeler, 6 Casey 72. The substance of all these definitions is a reasonable ground for belief of guilt. It can make no difference what induces the belief, if it be reasonably sufficient. While mere floating rumours are not an adequate foundation for it, plainly representations of others may be, and especially representations made by those who have had opportunities for knowledge, or who have made an' investigation. While on the one hand, individuals are to be protected against rash, wanton and causeless prosecutions, the public interests demand that courts shall not frown upon honest efforts to bring the guilty to justice.

In the case before us, it appears that the defendant acted upon the representations and recommendation of detective public officers. An atrocious crime had been secretly committed. It was the right and duty of every citizen to endeavour to bring the offenders to justice. The'defendant employed two police officers to ferret out the criminals. It does not appear that he directed the attention of the officers to the plaintiff, or that he had any ill-will against him. The officers went to the neighbourhood where the crime had been committed, and made repeated investigations. They discovered some facts tending strongly to show the guilt of the “ Smith family,” of which the plaintiff was one. The results of their investigation they reported to the defendant, and to his legal counsel. They reported the facts of which they had been informed, and those they had discovered, and told him all pointed to the Smith family. The counsel of the defendant, also in view of the report of the police officers, recommended that a prosecution be commenced. It was, therefore, not on his own suspicions, nor on flying rumours, but on the representations of experienced detectives, who had made an investigation, and in accordance with the opinion of counsel who had heard those representations, that the defendant acted. Though he may have been mistaken, these representations furnished a reasonable ground for belief. And the court below was therefore not in error, either in admit-, ting proof of them, or in instructing the jury that probable cause for the prosecution had been shown.

The judgment is affirmed.

Aunew, J., was not present at the argument of this case.