Penton v. Canning

I concede that the opinion of the majority herein is supported by respectable authorities, which, however, as I think, represent the minority view in this country on the point involved herein. Cases support the holding that when a justice of the peace or other inferior magistrate finds a defendant guilty in a criminal prosecution, and that fact appears on the face of the petition in a case of malicious prosecution, the mere allegation that there was want of probable cause is not sufficient, but that a special allegation is necessary to the effect that the judgment was obtained by fraud, perjury or other undue means. We are not here concerned with the correctness of these decisions. In such case the defendant must be proved guilty beyond a reasonable doubt. The offenses in such cases are generally of minor character, so that public policy may require that such final judgments should not be upset except upon some well recognized ground. Such cases as these are not in point herein. I do not believe that public policy requires that the same rule should obtain in cases where the magistrate has merely the power to bind the defendant over to answer in the district court. In such case there is not a trial, but merely an examination. As stated in Hale v. Boylen, 22 W. Va. 234,243, "such examinations are frequently carried on in a careless manner, and especially is this true where a party can give and is allowed to give bail as in the case before us; the justice may and is likely in such case to commit for trial on perhaps too slight evidence". That is, perhaps, not surprising in view of the fact that many of the justices of the peace are not learned in the law, and who, especially when inexperienced, are not unlikely to merely comply with the request of the prosecuting attorney, naturally thinking that he should know what ought to be done. And so, perhaps for this and other reasons, we find it held in Kendrick v. Cypert, 10 Humph. (29 Tenn.) 291, that no presumption at all arises when a defendant is bound over to a higher court to answer a charge made against him. In any event, courts have gone far enough in treating such fact as evidence of probable cause. They should not go further. Again, a defendant charged with a crime may find it advisable or necessary, perhaps because of want of time to prepare his defense or because of absence of witnesses, to waive preliminary hearing. There is no authority, so far as I know, that any special pleading is necessary to overcome the presumption arising in such case. The authorities are to the contrary, and it is held that such presumption may be rebutted by competent evidence offered in the trial of the case for malicious prosecution. 38 C.J. 412; Hess v. Baking Co., 31 Or. 503,49 P. 803; Campbell v. Myers, 221 Mo. App. 858, 287 S.W. 842. Courts have held that waiver of preliminary examination is equivalent to acknowledgment of guilt, so that if no special pleading to overcome the presumption is necessary in such case, surely none is necessary where preliminary examination is not waived, but an examination has been had. And it has been so held. Louisville etc. Ry. Co. v. Hendricks, 13 Ind. App. 10, 40 N.E. 82; Ewing v. Sanford, 19 Ala. 605; Ross v. Hixon, 46 Kan. 550, 26 P. 955; Stainer v. Land Mining Co., 166 Fed. 220. The same view was formerly held by the lower courts in New York. Beall v. Dadirrian, 62 Misc. Rep. 125, 115 N.Y.S. 196, affirmed in123 A.D. 943, 118 N.Y.S. 1094. And it is also fully supported by Hampton v. Jones, 58 Iowa 317,12 N.W. 276, and Kendall v. Goodson, 22 Ga. 491, 96 S.E. 343, the presumption in the last two cases arising from the action of the grand jury. The view contrary to that of the majority opinion herein is, then, held in at least eight different jurisdictions — greater numerically than those jurisdictions which sustain that view, on the point involved in this case. In other cases, such as Hale v. Boylen, supra; Bacon v. Towne, et al., 4 Cush. 217, and Ash v. Marlow, 20 Ohio 119, the fact of being bound over to a higher court appeared on the face of the petition in a suit for malicious prosecution. It did not occur to counsel or courts in those cases, though rules of pleading were then rather strict, that a general allegation of want of probable cause was not sufficient. The necessity for refinement of pleading in that connection was not discovered until a later time, mainly after courts had generally got away from technical rules of pleading.

Some of the authorities cited in the opinion of the majority herein go upon the theory that logic requires a special pleading in a case like that at bar, when the petition discloses the action of the magistrate. But logic is not inexorable in the field of law. It is tempered by the facts. Furthermore, what is logic in law is not always easy to determine. And considering the situation as a whole and bearing in mind the rules of pleading, logic does not require such special pleading. Judge Phillips in Stainer v. Land Mining Co., supra, quoted at length in the opinion of the majority herein, tried to prove his point by asserting that if an answer in a case like that at bar alleges that the plaintiff had been bound over, a special reply would be necessary, or the plaintiff would go out of court on the pleadings. I think he was mistaken. The main ultimate and issuable fact in this case, so far as the question before us is concerned, is as to whether or not there was probable cause for the institution of the criminal proceedings. And only ultimate facts need to be pleaded. Evidence need not be pleaded. In fact, it is generally held that it is improper to plead it. 49 C.J. 40-43. I have no doubt that if the plaintiff had not pleaded the fact of being bound over, it could have been shown by the defendant under a general denial. 38 C.J. 471. If that is correct it shows that it should be regarded in the light of evidence merely, and hence come under the general rule that to plead evidence is surplusage. 49 C.J. 43. And regarded from that standpoint, if the defendant had pleaded this fact in her answer, then, although it would have taken evidence to rebut the presumption arising therefrom, it would nevertheless, being merely evidence, and hence surplusage, not have been necessary to reply thereto or explain it, assuming, of course, as is true here, that the essential elements of malicious prosecution have been alleged. 38 C.J. 472. In other words, the special plea in an answer in such case would be merely stating the effect of a general denial in another form, and should have no greater effect. Logic does not require that an allegation which is surplusage should have any greater effect. In Hampton v. Jones, supra, the petition disclosed the fact that an indictment had been found against plaintiff, giving rise to the presumption that there was probable cause. It was claimed that this showed that the plaintiff had no cause of action. The court said: "A mere statement of the proposition shows its absurdity. * * * Attaching the indictment to, and making it a part of the petition can have no greater effect than introducing it in evidence. The plaintiff does not admit the allegations of the indictment are true; on the contrary, he avers in substance they are false." Plaintiff's petition herein alleges that no probable cause in fact existed. If receipt of notice is relevant in a case, and the petition in such case should happen to allege that the notice was duly mailed, an inference or presumption would arise that it was received. But if the petition should also allege that it was in fact never received, the inference, or presumption, would be negatived. The situation is similar in the case at bar. A presumption is shown on the face of the petition that probable cause existed, but it is negatived by the allegation that there was none in fact. That allegation is ordinarily treated as an allegation of an ultimate fact. 38 C.J. 464. I can conceive of no sufficient reason why it should not be so treated in a case such as that at bar, although, on the ground of public policy, a sufficient reason may be said to exist, in case of a solemn judgment of conviction. The presumption is, without reference to a defendant being bound over to the district court, that the prosecution was properly instituted with probable cause. 38 C.J. 481. In such case the general allegation of want of probable cause is sufficient. The fact that plaintiff was bound over in the criminal case to answer in the district court merely strengthened the presumption of probable cause existing in the first place. Hale v. Boylen, 22 W. Va. 234, 243. Why should this presumption, merely because it was strengthened somewhat, cause such a great difference in the requirement of pleading? I see no sufficient reason — no reason in logic or other field of thought, why a general allegation of want of probable cause should be treated as fish in the one case and as fowl in the other. That is particularly true in view of the liberal rules of construction of pleadings, and in view of the fact that courts have for more than half a century been trying to get away from technical rules of pleading. I am not willing to take a backward step in this case. "We should not," it was stated in the late case of Jaffe v. Stone, (Cal.), 114 P.2d 335, 342, "be led astray by the notion of a `disfavored' action to defeat the established rights of plaintiff by indirection; for example by inventing new limitations on the substantive right * * * or by adopting stricter requirements of pleading than are warranted by the general rules of pleading."

And finally, if any such special pleading as herein discussed was necessary, it was sufficient when the plaintiff alleged that the justice disregarded the evidence and had no competent or sufficient evidence before him to bind plaintiff over to the district court. His action could at best but raise a presumption. Why should that be true where he disregarded the evidence in the case and followed the procedure deprecated in Hale v. Boylen, supra?

I have a high regard for the judgment of my associates, but, though regretfully, I feel constrained, for the reasons stated, to dissent herein.