Goodrich v. Warner , 21 Conn. 432 ( 1852 )

Waite, J.

Several questions are presented for our consideration, by the motion, in the present case. The principal and most important one, is, whether the evidence given upon the trials of the two criminal prosecutions against the plaintiff, was admissible, for the purpose of shewing reasonable and probable cause for these prosecutions. And we are all of opinion that it was. A different opinion, however, seems to have been entertained, by the supreme court of the state of New-York. Burt v. Price, 4 Wend. 591. And it has been supposed, that the evidence of the defendant alone, was admissible, because he could not be a witness in the action against him for the malicious prosecution. That reason, however, would not at present exist in this state, since, by a recent statute, parties in civil suits are made competent witnesses.

But the weight of authorities is entirely the other way, and, as we think, with great propriety. The question in issue was not solely, whether the plaintiff was in fact guilty of the crimes charged against him, but whether there existed, at the time, probable cause for the making of those charges. In order to determine that question, it would seem to be reasonable and proper to look at the evidence, as it then existed. It might be such as to leave no reasonable doubt upon any honest mind of the plaintiff’s guilt, and yet evidence might be subsequently discovered, which would entirely establish his innocence. Such cases often occur.

The evidence given in a criminal proceeding might not, in all cases, be conclusive evidence of probable cause, because the party instituting the prosecution, might know, that the evidence was untrue, or that other evidence existed which would give an entirely different aspect to the case. But still, such evidence, in our opinion, is clearly admissible, as conducing to prove the issue, and may be received in connexion with the other evidence in the case. James v. Phelps, 11 Adol. & Ellis, 483. (39 E. C. L. 150.) Delegal v. Higley, 3 Bing. N. C. 950. (32 E. C. L. 398.)

We have not been referred to any case, in this state or in England, where this precise question has been made and decided. But from what is said, by some of the elementary writers, and in some of the cases, we are led to infer, that such is the English practice.

Thus, it is said in Buller's Nisi Prius, “that the plaintiff must produce and prove a copy of the acquittal on record, and the substance of the evidence given on the indictment, is material.” P.13. And again, it is advisable for the defendant to give proof of probable cause, if he he capable of doing it; “and for this purpose, proof of the evidence given by the defendant on the indictment, is good.” P. 14.

And in Biggs v. Clay, which was an action for maliciously causing the plaintiff to be arrested on a charge of felony, and carried before magistrates, who, after hearing the statements and evidence of the parties, discharged him, no evidence of what occurred before the magistrates was given. The defendant’s counsel contended, that it was incumbent on the plaintiff to prove all that occurred before the magistrates; but the court held it to be unnecessary. 3 Nev. & Man. 464. (28 E. C. L. 407.)

It would seem from a brief report of this case, that it was optional with the plaintiff to introduce that evidence or not, at his election. He might do so, but was not bound to do it. If the plaintiff might prove the proceedings before the magistrate, to show a want of probable cause, the defendant, on his part, might do the same, to shew that such cause in fact existed.

If the evidence was admissible, then it may be proved, by any competent witnesses. The party offering it, would naturally call upon those whose attention was called to it, at the time, and who would be best able to detail it. In this case, the magistrate before whom the trials were had, was called, It was his particular duty to attend to the evidence, to weigh and consider it, and determine whether it was sufficient to justify a conviction, in the one case, and a binding over, in the other. Such a witness would be more likely to remember what was said than a mere spectator. And we see no necessity for calling the witnesses, who gave the evidence on the former trials. They would indeed be competent witnesses; and so would any other persons who heard and remembered what they said.

But these questions have recently been considered, by the supreme court of Massachusetts; and that court held, that the evidence given on the criminal trial, was admissible in the action for a malicious prosecution, for the purpose of determining whether there was probable cause for the prosecution; that it might be proved, by any witness who could testify to it; that the magistrate, before whom the criminal trial was had, as well as the witnesses who gave the testimony, was a competent witness; and that there was no necessity for calling those witnesses. Bacon v. Towne & al. 4 Cush. R. 217.

And this disposes of another question, whether the evidence given on the criminal prosecutions relative to the defendant’s character, was admissible, in the court below. For if the whole evidence could be received, then the evidence relating to the defendant’s character, was admissible as constituting a part.

But this question is materially different from another made by the plaintiff, whether testimony could be received to shew what, in fact, was the defendant’s character, both at the time of the criminal trials, and also at the time of the trial in the court below. Evidence to this effect was offered before the defendant was called as a witness.

But in neither case, was his character in issue, except for the purpose of determining the degree of credit to be given to him as a witness. He was subsequently called as a witness, in the court below; and then the evidence as to his character would have been admissible, and not previous to that time.

For the purpose of shewing the manner in which the prosecution against the plaintiff for burning the defendant’s barn, originated, and the part taken by the defendant, the evidence was introduced relative to the disclosure made by McGowan, the communication made by the state’s attorney, and the taking of the affidavit. Deming was asked, whether the defendant urged the taking of the deposition; and he answered, that the defendant said, he was reluctant to prosecute the plaintiff, because he feared him; that the plaintiff had struck him, and he did not wish to incur his additional displeasure, by a prosecution.

It is obvious, that such a disclosure, supported by affidavit, in the absence of any circumstances awakening suspicion as to the truth of it, would naturally lead to a prosecution of the plaintiff; and evidence of these facts became material, both in respect to the questions of malice and probable cause. And the declarations made by the defendant, at the time, may fairly be considered as a part of the res gestœ, as tending to shew his motives, in taking the affidavit—that he was influenced rather by the advice of others, than governed by his own feelings towards the plaintiff.

As to the effect of the conviction of the plaintiff before the magistrate, upon the charge for an assault and battery, we think, the subject was properly submitted to the jury. Had the plaintiff taken no appeal from that judgment, it would have been conclusive evidence of probable cause. Mellor v. Baddely, 6 Car. & Payne, 374. (25 E. C. L. 444.) But if, upon a full and fair trial, the evidence against the plaintiff was sufficient to satisfy the court of his guilt, that circumstance will afford strong presumptive evidence of probable cause, existing at that time, although, upon a subsequent trial, and perhaps upon other and further testimony, a jury might be of opinion, that it was not sufficient to justify a conviction.

In the charge of the court to the jury, we discover nothing erroneous. So far as the plaintiff requested the court to instruct the jury, the instruction was given in conformity with that request. What was further said, we consider unobjectionable.

And in respect to the count for slander, it was not necessary to prove the words to have been spoken in the presence of Belden. It is sufficient to prove, that they were publicly uttered.

We therefore do not advise a new trial.

In this opinion the other judges concurred.

New trial denied.