
    John W. Hall, Resp’t, v. William Kehoe, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 7, 1889.)
    
    1. Malicious prosecution—Termination of criminal proceeding.
    Plaintiff was arrested on a charge of wrongfully cutting timber on defendant’s land. The case was adjourned to have a survey made, and on the adjourned day the complaint was dismissed- on the complainant’s motion and plaintiff discharged. Held, that the criminal proceeding was thereby ended so as to permit an action for malicious prosecution.
    2. Same—Evidence.
    In an action for malicious prosecution it is not error to refuse to receive evidence of declarations of the defendant, made before the recorder, that he was not afraid the plaintiff would run away and would go on his bond.
    8. Same.
    Testimony of the surveyor, that he informed the defendant that his land did not extend to the locus in quo, is admissible as bearing on defendant’s motive in insisting on the continuance of the criminal proceeding.
    4. Same—When probable cause a question for the jury.
    Where the evidence as to want of probable cause is conflicting, the question is one for the jury.
    5. Same—Charge—Advice of counsel.
    The court refused to charge that “ advice of counsel given on a full and fair statement of his case ana acted upon in good faith, is a good defense.” Held, no error; as the request limited the advice to a statement of defendant’s case instead of all the facts and circumstances, knowledge and information possessed by defendant.
    8 Same.
    The court refused to charge that defendant had the right in deciding as to the good faith of plaintiff in cutting the timber to take into consideration the fact that he had been convicted of burglary and larceny, but charged that the jury could consider all the proof that may properly bear on the conduct of the man. Held, that this sufficiently left the question of fact involved for the consideration of the jury.
    Appeal from a judgment entered upon a verdict in Oswego county for $ damages in favor of the plaintiff; and also an appeal from an order denying a motion for a new trial made on the minutes of the circuit judge. Action for malicious prosecution.
    Plaintiff was arrested on the complaint of the defendant made to the recorder of the city of Oswego, and'accused of willfully cutting timber upon lands in the town of Scriba, thereby violating § 640 of the Penal Code. The criminal proceedings were dismissed on the 27th of March by the recorder," and thereafter this action was brought, and upon the- trial much evidence was given in relation to the ownership of the premises whereon the timber was alleged to have been cut.
    
      W. A. Poucher and William Tiffany, for app’lt; D. P. LesterT for resp’t.
   Hardin, P. J.

We think the evidence given upon the trial was entirely sufficient to show that the criminal proceeding was ended and dismissed before the recorder. The defendant appeared before a magistrate and obtained a warrant returnable before the recorder, and defendant appeared as complainant; he was sworn for the people. The warrant was returnable on the 5th of March, 1886, and the charge against the party accused was read, and the proceedings adjourned to the 6th of March by “ a sort of an agreement between the parties.” On the 6th of March the complainant was sworn and presented a deed, and it was ascertained that' a survey would have to be made, and a further adjournment was taken until March 27th; and the recorder testifies, viz.: “On March 27th the complaint was dismissed upon application of Mr. Kehoe; the defendant was not detained longer; I presume he was discharged; he didn’t stay there; after I dismissed the complaint I didn’t detain him in custody; he went away; I didn’t consider him in custody any more; I know what the complaint was for. * * * I dismissed it because there was no proof; neither parry seemed to know the rights of each other or themselves; I dismissed it on the application of the complainant; I dismissed it because they didn’t present any evidence; I think it was not terminated because of the fact that they talked the matter over and agreed finally; th*e charge was dismissed, and he was discharged, and that kind of termination was had before me.”

When the defendant was upon the stand as a witness he was asked whether he had heard anything about “ any question being raised as to the title of your father to that land, except in relation to this claim that John Clauss hadn’t deeded the land that he had intended to sell; ” this question was objected to and the court sustained the objection, and the defendant took an exception. The witness stated that there was some talk or suspicion that when Clauss convejmd to Hall and to the defendant’s father, that a piece had been left not deeded to anybody; and after the witness had stated that such a claim had been made, he added, “I never heard of any other claim.” We think this last answer embraced the substance of the matter inquired about in the question which was excluded, and, therefore, the exception taken to the ruling is unavailing.

2. Nor do we think it was error to refuse to receive the declarations of defendant made before the recorder to the effect that Hall would not run away, and that he, defendant, was not afraid of it, and that he would go on to his bond himself. It was not offered in connection with any act transpiring which the plaintiff proved for the purpose of affecting the defendant. It was therefore no part of any transaction, so that the declarations made by the defendant himself would be competent evidence in his own behalf.

3. When the witness Baker was upon the stand he testified in respect to a survey that he had made of the premises, and that he ran as far as the pond and couldn’t get across it on the twenty-sixth of March, and without objection he stated that he communicated to the defendant “ where the line appears to run; and it runs over on the defendant’s land.” After he had given that testimony a specific question was put to him as to whether or not he told Kehoe, the defendant, that he hadn’t any land over there. This was objected to and the objection was overruled and an exception taken; the answer of the witness was “I said to Mr. Kehoe that it appears you haven’t any land over on that side of the line; if this be the line of lots, the acre and a half would not carry Kehoe’s land within ten or fifteen rods of the wood land on the west side of the swamp or in the swamp; that’s what I said before; there is no timber there on that acre and a half.” This information given to the defendant seems to have been prior to the termination of the criminal proceeding, and may have had some legitimate bearing upon the motive of the defendant in insisting upon the continuance of the criminal proceedings. We think the evidence bore legitimately upon the motive of the defendant in insisting upon the continuance of the criminal proceedings, and it was not error to receive it.

4. While the burden was upon the plaintiff to prove the want of probable cause for the prosecution, we are of the opinion that upon the whole evidence the trial judge properly held that the question was one of fact for the determination of the jury.

In Heyne v. Blair, 62 N. Y., 19, it was said, viz.: “ If the facts proved are capable of different inferences, it is for a jury to determine what, under the circumstances, would be the belief and action of men of ordinary prudence.”

In Avery v. Blair, 21 Week. Dig., 178, it was said: “Where the facts relied upon to make out that branch of a case are in dispute and the evidence is contradictory, it is the duty of the court to submit the questions of fact so arising to the jury.”

In Fagnan v. Knox, 66 N. Y., 527, Church, Ch. J., said: “That when the facts adduced to prove a want of probable cause are controverted, or conflicting evidence is to be weighed, or the credibility of witnesses is to be passed upon, it must be submitted to the jury to find the facts under proper instructions as to the law.”

We are of the opinion that the trial judge committed no error in refusing to take the question of probable cause from the jury, and that it was his duty to submit that question as he 'did upon all the facts and circumstances disclosed in the evidence to the determination of the jury; nor can we say their finding upon that question is contrary to the evidence, nor that it does not accord with the weight of the evidence. The defendant, gave evidence tending to establish probable cause for the prosecution of the .plaintiff. Whether that evidence furnishes circumstances sufficiently strong in themselves to warrant a cautious man, or a prudent and fair mind, in the belief that the plaintiff was guilty, was a question to be determined by the jury. Shafer v. Loucks, 58 Barb., 426.

Whether the prosecution was instituted and carried on from malice was a question, upon all the evidence, for the consideration of the jury.

In Burhans v. Sanford & Brown, 19 Wend., 417, it was said: “ Malice may be, and usually is, inferred in these áctions from the want of probable cause; it is not necessary to show that the act complained of was dictated by angry feeling, or a vindictive motive."

5. Before the charge was completed the defendant’s counsel asked the court to charge the jury that “the advice of counsel given on a full and fair statement of his case and acted upon in good faith, is a good defense in an action for malicious prosecution, whether the plaintiff was guilty or innocent.”

The court replied: “ No, I cannot charge that ” and the defendant took an exception. Thereupon the court did continue his charge as follows : “I will say in regard to that, that the advice of counsel is an element, and is evidence to be considered upon the question of probable cause. But I cannot charge that proposition alone, because it leaves out some of the elements which, I insist, go to make up probable cause. I have stated, I think, the effect to be given to the advice of counsel; in the first place, and in order that the advice shall constitute probable cause, a person must believe that the party is guilty. But that is not sufficient alone. He cannot believe it unless he has some ground to believe it upon. He must have reasonable grounds, as the courts say, such as would induce the belief in the mind of a reasonably discreet and prudent person. Now, as bearing upon the amount of evidence, the facts and circumstances, which would induce a discreet and reasonable person to believe a man guilty, the advice of counsel comes in very properly. A reasonably discreet and prudent person, who has a certain set of facts and circumstances upon which the mind has to act in determining whether a person is guilty, would be naturally influenced by what a lawyer in good standing would say to him upon the subject. In that view advice of counsel is strong. But I cannot say that advice of counsel, without reference to the facts and circumstances under which the advice was given, will form a defense to an action of this sort." Thereupon the defendant took another exception.

Prior to the request which we have quoted and the reply which the court had made thereto, in the body of the charge referring to the facts and circumstances, as well as the knowledge and information which the defendant had received, the court adverted to the advice of counsel, and in effect stated that if the defendant," upon such facts and circumstances, and knowledge and information which he possessed, and upon the advice of counsel believed that the plaintiff was guilty of the offense charged, then pro"bable cause was made out and the defendant was protected and this action could not be maintained.

It is to be observed that the request which was made limited the advice of counsel to a statement of defendant’s case instead of referring to all the facts and circumstances, knowledge and information possessed by the defendant We think the exception was unavailing.

In Hall v. Suydam, 6 Barb., 84, it was said in regard to this question that “it is properly a question for the jury whether such party acted bona fide on the opinion given him by his professional adviser believing that the plaintiff was guilty of the crime of which he was accused, or that he had a good cause of action against the plaintiffand it was also further said: “ Good faith merely, in making a criminal charge against another, is not sufficient to protect the party from liability. There must be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person charged, was guilty of the crime of which he was accused, to make out such a probable cause as will be a defense to an action for a malicious prosecution.”

In Shafer v. Loucks, 58 Barb., 426, it was said: “Belief, and reasonable grounds for belief, are undoubtedly both essential elements in the justification of probable cause. A man must act fairly, prudently, cautiously and reasonably, as well as in good faith. This, I think, is sound law. That is, he must not act upon mere conjectures, or impulse or passion.”

We think the case from which we have made the quotation was followed by the trial judge in presenting this case to the jury.

The counsel for the defendant asked the court to charge the jury that the defendant “ had the right in making up his mind whether the plaintiff was acting in good faith in making a claim in regard to these premises and in cutting this timber, to take into-consideration the fact that he had been convicted of burglary and larceny.” In response to that request the court observed: “I will say to the jury that they may take into consideration all the-proof that has been given that may properly bear upon the conduct of the man. I don’t like to single out a thing of that sort, and say that they shall take it into consideration. I will leave it. for them to do as they choose about it.” Thereupon the defendant’s counsel inquired, viz.: “Is our request declined?” The court replied: “Yes, in your express words I decline.” Thereupon an exception was taken. We think the trial judge sufficiently left the fact involved in the request to the jury for their consideration, and he committed no error in declining to yield to the precise language of the request.

We have looked at the other exceptions found in the appeal book, and are of the opinion that none of them present a ground upon which a reversal should be had.

Judgment and order affirmed, with costs.

Martin" and Mekwin, JJ., concur.  