
    Jennings v. Shepherd.
    
      Malicious prosecution — Filing affidavit and discharge — Prima facie evidence — Want of probable cause.
    
    In a suit for malicious prosecution, proof that the defendant filed an affidavit, in a mayor’s court, charging the plaintiff with forgery and that, in consequence, he was arrested and imprisoned, and that, on the preliminary hearing, after witnesses were sworn and examined, he was discharged, is prima facie evidence of want of probable cause.
    (Decided May 28, 1914.)
    Error : Court of Appeals for Pickaway county.
    Plaintiff in error, Frank E. Jennings,
    defendant in the court of common pleas, filed an affidavit in the mayor’s court of Circleville- charging Charles Shepherd with forgery.
    The defendant in error was arrested and imprisoned, and after a trial by the mayor, in which witnesses for the state and defendant were examined, he was discharged. He thereupon brought this action for malicious prosecution and recovered a judgment for $400.
   Sayre, J.;

Walters and Jones, Thomas A., JJ., concurring.

The trial court charged the jury as follows:

“The fact that the mayor discharged the plaintiff because he did not find him guilty of the charge on which he was arrested is prima facie evidence that said criminal prosecution and arrest was without probable cause, but it is not conclusive evidence thereof. By prima facie evidence it is meant such evidence as creates a presumption that these facts are established by it in the absence of any evidence to the contrary. In other words, it is a sufficient way to establish the disputed facts until they are rebutted or overcome by evidence to the contrary.”

It is contended on behalf of plaintiff in error that proof of a discharge by an examining magistrate is not prima facie evidence of a want of probable cause and that the question has been decided by the case of John v. Bridgman et al., 27 Ohio St., 22; but it will be seen that the statement of Judge Whitman, who wrote the opinion in that case, is an obiter dictum, because when he used the language that “the mere fact of acquittal and discharge by the magistrate was not enough” to show want of probable cause, he was discussing the question whether the plaintiff in the suit for malicious prosecution could show that no evidence was offered before the magistrate by the complainant to establish the charge contained in the affidavit. The question whether such discharge is prima facie evidence of want of probable cause was not one of the assignments -of error and did not arise in the case.

Section 13511, General Code, provides that “When the accused is brought before the magistrate and there is no plea of guilty, he shall inquire into the complaint in the presence of said accused. If it appear that an offense has been committed and that there is probable cause to believe the accused guilty, he shall order him to enter into a recognizance * * * otherwise he shall discharge him * *

By virtue of- Section 4534, General Code, the mayor of Circleville had the jurisdiction conferred in Section 13511 on a charge of forgery.

Hence, the question inquired into by the magistrate, and the one he' had authority to determine, was the one as to probable cause, and a finding was made that there was no probable cause to believe that Shepherd was guilty of the crime of forgery.

Was this finding prima facie evidence of a want of probable cause in this case ?

The decisions of courts of last resort on this question are not in harmony. The following is a partial list of those holding that the discharge by the magistrate, on a preliminary hearing, is prima facie evidence of the want of probable cause: Stubbs v. Mulholland et al., 168 Mo., 47, 67 S. W. Rep., 650; Jones v. Finch, 84 Va., 204, 4 S. E. Rep., 342; Brown v. Vittur, 47 La. An., 607, 17 So. Rep., 193; Ross v. Hixon, 46 Kan., 550, 26 Pac. Rep., 955, 26 Am. St., 123; Smith v. Clark, 37 Utah, 116, 106 Pac. Rep., 653; Frost v. Holland, 75 Me., 108; Munns v. Dupont et al., 1 Am. Lead. Cases, 249; Johnson v. Chambers, 32 N. C., 287; Vinal v. Core et al., 18 W. Va., 1; Eggett v. Allen, 119 Wis., 625, 96 N. W. Rep., 803; Barhight v. Tammany, 158 Pa., 545, 28 Atl. Rep., 135, 38 Am. St., 853.

The case of Davis v. McMillan, 142 Mich., 391, 105 N. W. Rep., 862, reviews a number of decisions on the subject and especially those holding that the discharge by the magistrate is not prima facie evidence of the want of probable cause. Among them is the case of Israel v. Brookes, 23 Ill., 575, in which the writer of the opinion undertakes to state the reasons for holding that a discharge by the magistrate is not prima facie evidence of the want of probable cause, thus:

“How many magistrates are there in obscure' localities, who are as little capable of determining what is probable cause for a criminal. accusation, as they are of explaining any of the phenomena of nature. How many do we find prejudiced against a public accuser, how many in sympathy with the accused. The decisions of such an official, on intricate questions of law or fact, should not weigh against the accused, and they do not practically, for if he is committed, the grand jury pay no attention to the finding of the magistrate. It is not prima facie evidence of his guilt, and how preposterous it is to say the discharge of the criminal is prima facie evidence of want of probable cause. It is not-so, and should never be so regarded.”

This line of reasoning, which is quoted in Davis v. McMillan, supra, with approval, leads to an entirely erroneous conclusion.

Mr. C. A. Leist and Mr. G. G. Adkins, for plaintiff in error.

Mr. George W. Morrison and Mr, Gharles Ger-hardt, for defendant in error.

Public officers are presumed to do their duty and their acts are presumed to be regular. While courts of general jurisdiction and of review may not indulge these presumptions in all respects as to courts of inferior and limited jurisdiction, yet they will presume that magistrates have intelligence enough to pass upon the questions which they are required to pass upon and that they do act honestly. Where a court of limited and inferior powers has acquired jurisdiction its acts are presumed to have been rightly and honestly done. The fact that some magistrates may be ignorant and liable to be prejudiced does not overthrow the presumption. When a public officer,, charged with the duty of determining a controversy, performs that duty the inference naturally and logically arises that his determination was just. Hence, since magistrates in our state are charged with the duty of determining the question of probable cause in criminal cases, such determination, in the absence of any other evidence, ought to be and is prima facie evidence of the fact determined. But this is true only when such magistrate has held a preliminary trial and has heard the evidence produced, because only then can he pass upon the question of probable cause.

The charge of the trial court in this respect was not erroneous.

Judgment affirmed.  