
    Smith v. Koziolek, Appellant.
    
      Malicious prosecution — Information—Evidence—Arson.
    1. In an action to recover damages for an alleged malicious prosecution for arson the complaint made by the defendant against the plaintiff before a justice of the peace is admissible in evidence as charging a crime, if it states that by reason of threats the defendant had cause to suspect and did suspect the plaintiff of setting fire to a barn.
    2. In an action to recover damages for an alleged malicious prosecution for arson information communicated to the defendant long after the prosecution was terminated is inadmissible inasmuch as it throws no light on the state of mind of the prosecutor at the time the prosecution was brought. The test is the prosecutor’s belief of the existence of probable cause at the time of the prosecution based on reasonable grounds.
    Argued March 5, 1911.
    Appeal, No. 27, March T., 1912, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1908, No. 246, on verdict for plaintiff in case of James Smith v. Peter Koziolek.
    Before Rice, P. J., Henderson, Orlady, Head and Porter, JJ.
    Affirmed.
    
      Trespass to recover damages for malicious prosecution.
    Before Trexler, P. J., specially presiding.
    At the trial the plaintiff offered in evidence the information made by defendant upon which plaintiff was arrested for arson.
    Defendant’s counsel: At this point, if your honor please, I would like to have your honor read the information. We object to the introduction of the information as being irrelevant and immaterial, as it does not charge the defendant with the crime of arson, nor does it charge him with any crime.
    The Court: Objection overruled. Exception noted for defendant and bill sealed.
    Plaintiff’s counsel (continuing the offer): “ Swoyersville Borough, Luzerne County, ss. The information of Peter Koziolek of Swoyersville in the county aforesaid, taken upon his oath before P. J. Hayden, one of the justices of the peace in and for said county at his office in Swoyersville borough, June 27, 1908, saith that on the morning of June 27, between one and three a. m. 1908, at the county aforesaid, borough aforesaid, the barn of said deponent, containing hay, horses, etc., was consumed by fire; that threats having been made on a former occasion by one James Smith of Plains township, said county, a farmer, that he would do this deponent some mischief, the deponent has got cause to suspect and doth suspect the said James Smith of setting fire to said barn. Further saith not. Contrary to the act of general assembly, in such case made and provided. Sworn and subscribed June 27, 1908, before me. P. J. Hayden, Justice of the Peace. My commission expires first Monday of May, 1912.” [1]
    The court struck out the testimony of Julia Napolski, the testimony, motion, and ruling thereon, being as follows:
    “Q. You had a conversation with him some time in the spring of 1908, about April? A. Yes, sir. A. Did James Smith-? A. Yes, sir. Q. Did James Smith in that conversation say that Peter Koziolek had put notices of sale of his property? A. Yes, sir. Q. And that if it was sold out as his property James Smith would burn him to the ground? A. Yes, sir. Q. Or words to that effect? A. ‘Never mind,' godmother ’ — I stood up for his child — he said. ‘Never mind, godmother, he put me on the constable’s sale and I will make, I will put him down so low; if I can’t do nothing I will burn him down.’ ”
    Cross-examination by Mr. McAniff: “Q. When did you tell that to Peter Koziolek? A. I didn’t tell Mr. Koziolek nothing. Q. You never told it to him? A. No, sir. Yes, I did tell him after the house was burned down.”
    Plaintiff’s counsel: Object to that and ask to have the testimony stricken out for the reason that the testimony is incompetent and immaterial and not up to the offer already indicated by counsel for the defense, and for the further reason that no specific act of wrongdoing tends to show the general reputation, and for that reason would not be in mitigation of damages. It would not be competent, and it would tend to prejudice the jury in the matter of the plaintiff’s right and should not be admitted in that way in mitigation of damages.
    Defendant’s counsel: This testimony is offered, first, for the purpose of contradicting the plaintiff, who testified that he never made such a statement to the witness, and in mitigation of damages.
    Plaintiff’s counsel: Objected to, first, because it would not be a contradiction of a material matter and therefore not material; and, second, the offer to show a specific matter to make up character and to fix the standing of the plaintiff in a community would not be competent and it would tend to prejudice the jury in the matter of the plaintiff’s right and should not be admitted in that way in mitigation of damages.
    The Court: The objection is sustained. Exception noted for the defendant and bill sealed. The testimony of which this is alleged to be contradiction was elicited by the defense on cross-examination of the plaintiff and was not competent, except to lay grounds for testimony showing that such threats had been made by the plaintiff, which threats had been communicated to the defendant prior to the bringing of the prosecution. The motion to strike out the testimony of the witness is allowed and the same is stricken out. [2]
    Verdict and judgment for plaintiff for $220. Defendant appealed.
    
      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.
    
      J. L. Lenahan, with him J. E. Jenkins, for appellant.—
    It was a mistaken and unauthorized act on the part of the justice to take such an alleged information and issue his warrant upon it. For such unauthorized act the informant was not liable: Magnussen v. Shortt, 200 Pa. 257; Teal v. Fissel, 18 W. N. C. 71; McElhattan v. Kane, 7 Pac. C. C. Rep. 313; Grohman v. Kirschman, 168 Pa. 189.
    The testimony of Julia Napolski was properly stricken out: Shannon v. Simms, 146 Ala. 673 (40 So. Repr. 574); Goggans v. Monroe, 31 Ga. 331; Emerson v. Cochran, 111 Pa. 619; Madison v. R. R. Co., 147 Pa. 509; Ruffner v. Hooks, 2 Pa. Superior Ct. 278; Beihofer v. Loeffert, 159 Pa. 365; Schondorf v. Griffith, 13 Pa. Superior Ct. 580; Bryant v. Kuntz, 25 Pa. Superior Ct. 102; Kirkpatrick v. Kirkpatrick, 39 Pa. 288; Dietz v. Langfitt, 63 Pa. 234.
    
      M. H. McAniff, for appellee,
    cited: Bryant v. Kuntz, 25 Pa. Superior Ct. 102; Hantman v. Hedden, 31 Pa. Superior Ct. 564.
    July 18, 1912:
   Opinion by

Henderson, J.,

The first error assigned is the admission of the complaint against the plaintiff made in the criminal prosecution before the magistrate. The appellant contends that it does not charge a crime. We are unable to accept this view of the case. The charge is expressed in a form long in general use in this state and embodies all that a prosecutor ordinarily would know in regard to the commission of the crime. It charges the fact of an offense and that the complainant suspects a particular person of having committed it. In the absence of actual knowledge as to the perpetrator a prosecutor could only act on suspicion but that the complaint in question was made with the intention of charging the plaintiff with the crime and for the purpose of procuring a warrant for his arrest is very evident.

The testimony embraced in the second assignment which was stricken out by the court was not admissible as the case then stood. Mrs. Napolski did not communicate the information which she had to the defendant until long after the prosecution was terminated and it of course had no effect on the question of probable cause, for the inquiry as to that goes back to the commencement of the prosecution and relates to the facts then known and as they then appeared. The test is the prosecutor’s belief of the existence of probable cause at the time based on reasonable grounds: Mitchell v. Logan, 172 Pa. 349; Hantman v. Hedden, 31 Pa. Superior Ct. 564. The excluded testimony neither threw light on the state of mind of the prosecutor at the time the prosecution was brought nor did it show that the plaintiff was guilty of the crime of which he was accused. There was an entire absence of evidence connecting the plaintiff with the burning of the barn and his discharge by the magistrate necessarily followed. There was not only the presumption of a want of probable cause arising from the discharge but there was some evidence of actual malice, and the case necessarily went to the jury for that reason. We think the evidence stricken out was not admissible in mitigation of damages.

By the affirmance of the defendant’s first point the law was clearly stated and as favorably to the defendant as the evidence permitted. There was no impropriety in explaining in the answer to the point that the malice referred to therein need not be expressed but might be inferred from the facts presented in the case. Taking the whole charge into consideration we regard it as a clear and fair presentation of the case with respect to which the appellant has no substantial ground for complaint.

The judgment is affirmed.  