
    Hall v. Kehoe.
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1889.)
    1. Malicious Pbosecution—Pbobable Cause—Question fob Jubt.
    When the facts bearing on the existence of probable cause for the institution of a criminal prosecution are such that conflicting inferences may be drawn therefrom, the question is one of fact for the jury.
    2. Same—Advice of Counsel.
    While the advice of counsel as to the criminal liability of a defendant is an element entitled to consideration in determining whether the prosecution had probable cause to believe defendant guilty, it is not of itself a sufficient defense to an action for malicious prosecution.
    
    8. Same—Instbuctions.
    _ In an action for maliciously prosecuting 'plaintiff for cutting timber on land, the title to which was disputed, the court may properly refuse to charge that the jury may consider the fact that plaintiff had previously been convicted of burglary and larceny, as bearing on the fact of his good faith in claiming the land, where the jury are instructed that they may consider his whole conduct in determining that question.
    4. Same—Evidence.
    The fact that a surveyor had partially surveyed the premises pending the criminal prosecution, and informed the prosecutor that he had no timber on his land, is admissible as tending to explain why the prosecutor insisted on a continuance of the proceedings.
    5. Same—Evidence.
    The testimony of the recorder before whom the prosecution had been pending, to the effect that the complaint was dismissed by the prosecutor, and that from that time the defendant in such .proceedings was no longer detained, sufficiently shows that the prosecution was terminated.
    Appeal from circuit court,' Oswego county. •
    Action by John W. Hall against William Kehoe, 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 section 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. There was a verdict and judgment for plaintiff, and defendant appeals.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      W. A. Poucher and William Tiffany, for appellant, D. P. Lester, for respondent.
    
      
       Respecting advice of counsel as showing probable cause in actions for malicious prosecution, see Gilbertson v. Fuller, (Minn.) 42 N. W. Rep. 203, and note; Blunk v. Railroad Co., 38 Fed. Rep. 311, and note.
    
   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 1 dismissed the complaint, I didn’t detain him in custody. He went away. Ididn’t consider him in custody any more. I know what the complaint was for. * * * I dismissed it because there was no proof. Neither party seemed to know the rights of eacli 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. The charge was dismissed, and he was discharged; and that kind of termination was had before me. ”

1. 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 conveyed to Hall, and to the defendant’s father, apiece 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 onto 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 could not get across it, on the 26th of March; and, without objection, he stated that he communicated to the defendant “where the lineappears 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 had not 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 10 or 15 rods of the woodland 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 criminál próceedings. 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 Wkly. 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 facts so arising to the jury.” In Fagnan v. Knox, 66 N. Y. 527, Church, C. 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. Louolcs, 58 Barb. 426. Whether the prosecution was instituted and carried on for malice was a question, upon all the evidence, for the consideration of the jury. In Burhans v. Sanford, 19 Wend 417, it was said: “Malice may be, and usually is, inferred, in these actions, 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: “Ho, 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. How, 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 probable 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 thedefendant. 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 plaintiff;” and it was also further said: “Good faith, merely, [in making a criminal charge against another,] is not sufficient to protect the defendant 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 plaintiff was guilty of the crime with which he was charged, to make out such a probable cause as will be a defense [to an action fora 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: “Tes, 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 tie had. Judgment and order affirmed, with costs. All concur.  