Opinion
(December Term, 1844.)
1. In an action on the case for a malicious prosecution, the want of probable cause for the prosecution does not necessarily imply malice in the prosecutor, so as to authorize the judge to pronounce that this want of probable cause implied such malice.
2. And as the defendant in that action may prove that the plaintiff was actually guilty of the offense charged, so he may also prove matters showing probable cause, though he did not know them at the time he instituted the prosecution.
3. The right to recover in such an action depends upon the entire innocence of the plaintiff, and malice in the defendant.
APPEAL from MACON Fall Term, 1844; Battle, J.
(84) Francis for plaintiff.
No counsel for defendant.
This was an action for maliciously prosecuting the plaintiff for a conspiracy with certain other persons. The defendant pleaded "not guilty," and upon the trial he gave evidence tending to show probable cause for the prosecution of the plaintiff. Thereupon the court instructed the jury that in their investigations upon the question of probable cause only such facts were to be considered as were known to the defendant when he instituted the prosecution; and, in this case, if the facts testified were known to the defendant when he became the prosecutor, they made out probable cause. The court also instructed the jury that a want of probable cause implied malice, and that in case they should find that there was no probable cause, it was not necessary the plaintiff should prove express malice.
The jury found for the plaintiff, and the defendant moved for a venire de novo, on the ground that the court erred in the direction that malice was implied in law from the absence of probable cause
The court refused the motion, and, judgment for the plaintiff being rendered, the defendant appealed.
We think there is error in the point excepted to by the defendant. The grounds of this action have been said to be, "on the plaintiff's side, innocence; on the defendant's malice." Bul. N. P., 14. The innocence of the plaintiff which is meant is not merely that he is able upon a trial to prove himself not guilty, but it is such entire innocence that there was no just ground of probable cause to suspect his guilt. If in such case as this last a person be maliciously prosecuted, the law most properly gives an action. But as the common interest requires, when a crime has been committed, that the prosecutor should be discovered and punished, the action is not given, though there was not probable cause to believe that the accused was not guilty, unless the prosecutor made the charge, not with a view to a fair investigation, but from malice, for the purpose of oppressing the accused, or from some other bad motive. Now, there may be many cases in which the influence of such bad motive may be almost irresistible, from the absence of probable cause. The grounds of suspicion may be so slight as to satisfy the mind that the prosecutor could not expect the accused to be convicted on them, and that they were used as a pretense, as furnishing the opportunity, under the semblance of aiding in the execution of public justice, to gratify private ill-will. Again however grave the circumstances of suspicion may in themselves appear, yet if the prosecutor be aware that any that are material be not as they appear, if he knew that the person charged was not guilty, the conclusion would unavoidably be that he had no probable cause; and, further, that he was actuated by malice, the intention to use the privilege of prosecuting for a wrongful purpose. But, on the other hand, there are many other cases in which a person may prosecute another without sufficient prima facie evidence, without a bad motive and from upright views of enforcing public justice. It often requires professional skill to connect and weigh the evidence and give opposing probabilities their proper effect. (85) Ordinary persons may honestly err in deducing conclusions from circumstances indicative of the guilt or innocence of the accused person; for it is a nice point, on which even judges differ, whether in a particular case there was or was not probable cause. If, therefore, a prosecutor erred in that point, and yet was able to show the honesty of his error, he ought not to be liable in damages. Such honesty may be established in a variety of ways, as from friendly relations between the parties, or a reluctance to institute the prosecution except, apparently, as a matter of duty, or from the near approach of circumstances to the constitution of probable cause, though not coming up to it, or any other evidence of the actual considerations which prompted the charge. Hence it has been properly said that malice may be inferred from the want of probable cause. Sutton v. Johnston, 1 Term, 493, 545. It is equally apparent that it is not necessarily to be inferred therefrom. On the contrary, it must in every case be properly an inquiry for the jury as to the actual fact, under explanations from the court. If it were not so, it should be said at once that the action lies for a prosecution without probable cause, for it is obviously idle to add that there must also be malice in the prosecutor, if the want of probable cause proves malice. The law draws no such presumption; for, though it often might be true, it would often be untrue in point of fact.
Although the defendant's exception does not embrace it, yet another observation dropped from his Honor which, as applicable to this case, we deem not entirely accurate, and therefore notice. It is the direction that upon the inquiry into probable cause only such facts are to be considered as were known to the defendant when he instituted the prosecution. The proposition is true when a plaintiff is endeavoring to establish that there was in fact no probable cause, by new evidence which rebuts the circumstances on which the prosecutor acted. The latter may with reason insist that of this new evidence he knew nothing, and as without it the other circumstances would make a probable cause, they justified at the time his proceeding. But it is not equally (86) reasonable with respect to further evidence offered by the defendant to establish just grounds of suspicion. Such evidence for that purpose seems to stand on the same footing with similar evidence that the plaintiff was actually guilty. There is no doubt that the defendant in this action may allege that the plaintiff, though acquitted in the prosecution, was actually guilty, and that he may prove the guilt by any evidence in his power, though discovered after the prosecution began, or after it ended. The law does not give the action to a guilty man. He brings it as an innocent one, and if it appear on the trial in any way that he is not, he must fail. So it must also be as to probable cause; for, as the defendant may show that an acquitted plaintiff was, nevertheless, guilty, he can for the same reason show that he was probably guilty, and in each case by evidence of the like kind.
PER CURIAM. Venire de novo.
Cited: Johnson v. Chambers, 32 N.C. 291; Bradley v. Morris, 44 N.C. 397.
(87)