Gabel v. Weisensee

Gould, Associate Justice.

In an action for malicious prosecution, it devolves on the plaintiff to prove that the prosecution was instituted maliciously, and without probable cause. (Griffin v. Chubb, 7 Tex., 614; 2 Greenl. on Ev., sec. 449; Add. on Torts, 591.)

The prosecution may be in law malicious, although it does not appear that the defendant acted under the influence of personal hatred, angry feeling, or a revengeful spirit. (Wiggins v. Coffin, 3 Story, 1; Burhans v. Sanford, 19 Wend., 417; 1 Hill, on Torts, 465; Mitchell v. Jenkins, 5 Barn. & Adol., 594.)

In treating of the subject of malicious prosecution, Professor Greenleaf says: “In a legal sense, any unlawful act, done willfully or purposely to the injury of another, is, as against that person, malicious.” This definition is quoted in the opinion in Griffin v. Chubb, 7 Tex., supra, and apparently received the sanction of this court.

Says Baron Alderson: “Any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice, is a malicious motive on the part of the person who acts in that way.” (Stevens v. Midland Railway Co., 10 Eq., (H. & G.,) 352.) In that case, it was held, that a prosecution without probable cause, “for the purpose of frightening others, and thereby deterring them-from committing depredations on the property of the defendant, is not a motive of such a direct character as to afford a legitimate foundation for a criminal prosecution.” Where a prosecution without probable cause was resorted to not in good faith, nor “ from motives affecting the public interests,” but as an indirect and disingenuous subterfuge to aid in getting possession of disputed premises, it was held to be malicious. (Kenrick v. Cypert, 10 Humph., 291.)

So where the defendant, without believing that there were sufficient grounds therefor, but for the purpose of “ tying up the mouths of plaintiff” and another party as witnesses in a civil suit, had plaintiff indicted for perjury, the jury thought the word “ malice ” was strong, but that the defendant acted from an improper motive; and they were told by the court that they might infer malice from the improper motive. (Haddrick v. Heslop, 12 Q. B., 267.)

The conclusion from these authorities, is that if the defendant did not prefer the criminal charge bona fide, under a belief of the plaintiff’s guilt, but, having no reasonable grounds for doing so, instituted the prosecution for the purpose of thereby procuring possession of his dog, he acted from an improper motive, and, in a legal sense, acted, maliciously. (Add. on Torts, 593; Haddrick v. Heslop, 12 Q. B., 267; Mitchell v. Jenkins, 5 Barn. & Adol., 594; Hinton v. Heather, 14 M. & W., 131; Brooks v. Warwick, 2 Starkie, 393.)

It is claimed that the judgment in this case should be reversed, because the court excluded evidence tending to disprove th§ existence of malice.

There is a bill of exceptions, showing that the court excluded the testimony of the foreman of the grand jury, to the effect that the defendant, in his statement before the grand jury, disclaimed “any desire to prosebute or persecute anybody; he only wanted his dog.” This evidence seems to have been offered under the mistaken idea, that the motive of getting his dog was so far justifiable, that proof of such a motive tended to rebut the existence of malice. The same mistaken idea, that bad feeling on his part towards Weisensee was essential to plaintiff’s case, led appellant to propose to interrogate the grand juror as to the facts in his manner of testifying going to show such bad feeling, or “ merely the feelings of a good citizen in the discharge of a public duty.”

Appellant claims that this evidence was erroneously excluded, and denies that public policy, or the oath of the grand juror, justified the court in refusing to order it. The only authority cited by counsel, is Greenleaf on Evidence, sec. 252, where the reasons for requiring secrecy in the proceedings of the grand jury are thus stated: “ One reason may be, to prevent the escape of the party, should he know that proceedings were in train against him; another may be, to secure freedom of deliberation and opinion among the grand jurors, which would be impaired, if the part taken by each might be made known to the accused. A third reason may be, to prevent the testimony produced before them from being contradicted at the trial of the indictment, by subornation of perjury on the part of the accused.” Counsel claims that none • of these reasons apply to the questions asked and excluded in this case. But if inquiry he allowed at any time into what the defendant stated, and how he deported himself in testifying before the grand jury, it would seem difficult to prevent its extension to the part taken in his examination by the different members of the grand jury, and their deportment towards him; and it is evident that the liability to such an exposure, at any future time, might interfere with the perfect freedom of action of the members of the grand jsiry. In the very section cited by counsel, Professor Greenleaf says of tire 'grand jurors, clerk, and prosecuting officer: “ They are not permitted to disclose who agreed to find the bill of indictment, or who did not agree; nor to detail the evidence on ■which the accusation was founded.” The reason of the obli- ■ gation of the grand jurors to keep secret the part taken by individual jurors, is, in part at least, not temporary, but con-tinning. That obligation, however, has not been held to prevent grand jurors from testifying to establish perjury committed by a witness in giving his evidence before them; (4 Blackst. Comm., 126, note 5, by Christian;) and there are modern authorities which hold, that “in all cases where.necessary for the protection of the rights of parties, whether civil or criminal, grand jurors may be witnesses.” (1 Whart. on Ev., sec. 601, and authorities cited in note, some of which are: The State v. Broughton, 7 Ire., 96; Comm. v. Mead, 12 Gray, 167; Comm. v. Hill, 11 Cush.; Burnham v. Hatfield, 5 Blackf., 21.)

We do not feel called on in this case to decide whether, in cases of malicious prosecution, the same rule applies as in cases of perjury. It is worthy of remark, however, that, since this case was tried in the court below, the Legislature have changed the ancient form of the oath taken by grand jurors, so that it reads: “ The Stated counsel, your fellows’, and your own, you shall keep secret, unless required to disclose the same in the course of a judicial proceeding, in which the truth or falsity of evidence given in the grand-jury room, in any criminal case, shall be under investigation.” Leaving the entire subject for future and further investigation, it is enough to dispose of the case before us, that even if the court erred in excluding the questions asked by appellant as already stated, the evidence excluded could not, under a proper charge, have produced, or tended to produce, a different verdict; and that the error, therefore, constitutes no sufficient reason for reversing the judgment. That the defendant went before the grand jury with a criminal charge against plaintiff only to get his dog, rather tended to establish the plaintiff’s case than to make out a defense, even if his demeanor were such as to exhibit qo bad feeling towards plaintiff. The j ary gave damages only to the amount of actual expenses of plaintiff growing out of the prosecution, as testified to by plaintiff, there being no other evidence on that subject. As it is evident that no exemplary damages were allowed, but only actual damages, it would be going too far to reverse the case for the exclusion of evidence which did not bear on the issue of the plaintiff’s right to a verdict or the amount of actual damages, but which could only have tended to show that the defendant’s motives were not as bad as they might have been, and to induce the jury to find lighter exemplary damages than they might otherwise have found.

The defendant himself being on the stand, as a witness in his own behalf, his Counsel asked him to “ state whether, in your appearing before the grand jury as a witness against Mr. Weisensee at the time the indictment was found against him, you had any malice against him.” The court sustained an objection to this question, and a similar one in regard to the motive of Witness in testifying on the trial of the indictment, on the ground (1) that the questions were leading, and (2), that it was for the jury to say from the facts whether there was or was not malice, and that this was not a fact in regard to which defendant could testify. Very evidently, the question asked was not as to any distinct intelligible fact, but sought to elicit from the witness his inference or conclusion involving his correct understanding of the meaning of the word malice in such a connection. The question was not a proper question.

There was evidence that defendant went to Major Looscan, who was an attorney at law, and told him about the dog. Mr. Looscan says that Gabel told him that “Weisensee had his dog, and he wanted to know what he should do about it; and he told Mr. Gabel to go to Mr. Weisensee, and if he (Weisensee) refused to give the dog up, then to go to the district attorney about the matter.” “Does not know if Gabel detailed all the facts to him or not. He (witness) advised Mr. Gabel upon the facts above stated, a,nd knew only such facts as stated by Gabel. Gabel paid him no fee.” It appears that the district attorney was spoken to, and said he would bring the case before the grand jury. It does not appear what information, as to the facts, Gabel gave the district attorney ; nor does it appear that Gabel complied with Looscan’s notice, and went to Weisensee, who refused to give him his dog. Gabel himself only says that Weisensee refused to whip it away.

The complaint is, that, under this state of facts, it was error for the court to instruct the jury, that “No man can lawfully invoke the aid of the criminal process of the law to merely have decided a question of property, or other civil right; and/1 if you find, from the evidence, that Gabel knew that Weisensee did not steal his dog, but that his object in instigating the criminal prosecution (if he had instigated such prosecution) was to obtain the possession of said dog, then he is liable in damages, &c.” It is not complained that there is error in that part of the charge which submitted to the jury the defense that Gabel acted in good faith, on the advice of counsel, to whom he had stated the material facts, but that the charge above recited was calculated to mislead. We think the charge recited was the law of the case, and was in all respects proper and appropriate.

We have given the case a careful .examination, and our conclusion is that the judgment be affirmed.

Affirmed.