Summary
In Beale v. Roberson, 29 N.C. 280, RUFFIN, C. J., after reviewing the English authorities, in connection with our own, says: "It would seem then, that making a question on this subject must be regarded as an attempt to move fixed things, and cannot be successful either in England or here."
Summary of this case from Moore v. BankOpinion
(June Term, 1847.)
In an action for malicious prosecution, where probable cause is alleged it is the duty of the court to direct the jury that if they find certain facts from the evidence, or draw from them certain other inferences of facts, there is or is not probable cause, thus leaving the questions of fact to the jury, and keeping their effect, in point of reason, for the decision of the court as a matter of law.
APPEAL from CHATHAM Spring Term, 1847; Manly, J.
The plaintiff sued the defendants for having maliciously and falsely sued out a warrant and prosecuted him, with two other persons, before a justice of the peace, for a felonious assault and robbery of the defendant Roberson on the highway. Upon not guilty pleaded, the evidence was that on a certain day Roberson and the plaintiff, and the two other persons who were prosecuted with the plaintiff, were in the town of Pittsboro together, and that in the afternoon Roberson, who was in a state of intoxication, set out on horseback for his residence, which was in the country in that vicinity. Afterwards, but how long did not distinctly appear, the witnesses saying about an hour or more, the plaintiff and the two other persons likewise left Pittsboro together; (281) to return, as they said, to their respective homes. The road which led to the residence of Roberson and the plaintiff and his companions was the same for 2 1/2 miles from Pittsboro, but at this distance there was a fork, and the road on one hand was Roberson's and that on the other that of the other persons. When the plaintiff and the two others were on trial before the justice of the peace, Roberson was sworn and examined as a witness to support the prosecution; and on this trial, after the plaintiff had given in evidence, the acquittal and discharge of himself and the others by the magistrate, the defendants, for the purpose of showing probable cause, gave in evidence the examination of Roberson before the magistrate, in which he stated that he proceeded on his return home, to the fork, and took his own branch of the road, and had gone half a mile on it when he was overtaken by persons on horseback, and that he turned his face around to see who they were, and discovered that they were three in number, and that two of them rode horses of the same color with that of the two persons accused, but did not observe the color of the other horse; and that as he turned, and before he could recognize either of the persons who had come up, he was knocked from his horse by a violent blow across the head with a stick; and being then interrogated by the accused whether he knew or believed that they had stricken him, the said Roberson replied that he had no right to say they did; for he did not see them, and could not, indeed, say whether the persons were white or black. And the defendants gave further evidence that a short time after the blow was given to Roberson, as fixed by him in his examination, the three accused persons crossed Rocky River in company, a mile or two farther on their way.
Upon the foregoing evidence, the presiding judge directed the (282) jury "that it was essential to the defendants' justification that they should have had probable cause for deeming the plaintiff guilty and taking legal proceedings against him." And his Honor further stated to the jury, "that it was not easy to define, in precise terms, what probable cause was, but that he believed it to be such cause for proceeding as would have actuated a rational mind, imbued with ordinary respect to the rights of others: and should the jury conclude, in making an application of the facts proved, that the evidence before the minds of the defendants furnished them at the time with reasonable grounds of suspicion and for suing out the warrant, the plaintiff could not recover." And his Honor further stated to the jury, "that if the defendants knew or believed that the plaintiff was innocent, they would then have no cause for what they did; yet, on the other hand, that it was not inconsistent with probable cause, though there was at the time no certain belief or settled conviction in the minds of the defendants of the plaintiff's guilt."
The counsel for the plaintiff insisted that the court was bound to inform the jury, as a matter of law, whether the facts given in evidence, or any of them, and which did or did not, amount to probable cause, and prayed the court to direct the jury that the evidence in this case, if believed by them, did not amount to probable cause. But his Honor declined giving any further directions, and the jury gave a verdict for the defendants; and from the judgment the plaintiff appealed.
Badger and McRae for plaintiff.
Manly for defendant.
This case brings up again the question whether probable cause is matter of law so as to make it the duty of the court to direct the jury that, if they find certain facts upon the evidence, (283) or draw from them certain other inferences of fact, there is or is not probable cause, thus leaving the questions of fact to the jury, and keeping their effect, in point of reason, for the decision of the court as a matter of law. Upon that question, the opinion of the Court is in the affirmative; and, therefore, this judgment must be reversed.
The point is concluded in the State by repeated adjudications. It was first presented in Leggett v. Blount, 4 N.C. 560, in which the judge told the jury, after the examination of many witnesses on both sides touching the alleged probable cause, that there was probable cause; and the judgment was reversed because the judge had assumed the decision of the whole case, including the facts as well as the law. But it was distinctly admitted, or rather affirmed, there, that probable cause, as an abstract question, is one of law and to be decided by the judge according to the doctrine in Johnston v. Sutton, 9 Term, 510, and the authorities therein cited, which establish that upon a special plea and demurrer, or a special verdict, the court determines that question, and that, even when there is a general verdict for the plaintiff, it is the province of the court to say whether certain facts appearing on the declaration do not amount to probable cause. In the subsequent case of Plummer v. Gheen, 10 N.C. 66, Chief Justice Taylor (who had tried Leggett v. Blount) delivered the opinion of this Court, and admitted that the Superior Court had explained to the jury correctly what probable cause was, but yet held that it was a question of law whether the circumstances, being true, amounted to probable cause, and that the parties had a right to the opinion of the court distinctly on it; and the judgment was reversed because upon very complicated and contradictory evidence the presiding judge had left that question to the jury. In Cabiness v. Martin, 14 N.C. 454, the presiding judge decided the question of probable cause, and this Court reversed the judgment, not because he assumed what was not within his province, but because he had decided (284) wrong, as we thought, by holding a certain fact, if found by the jury, to be probable cause, which we deemed not to be so. And in the two cases of Swaim v. Stafford, 26 N.C. 392 and 398, the question was again decided as matter of law — it being held, in the one case that there was, and in the other that there was not, probable cause. Such a series of decisions, in our own courts, the same way, would protect the doctrine laid down in them from being drawn into debate now, even if we entertained doubts of its correctness originally. But independent of authority, our reflections satisfy us that the principle is perfectly sound. It is a question of reason whether certain ascertained facts and circumstances constitute a probable and rational ground for charging a particular person with crime. If, indeed, the question was what was the actual belief of the prosecutor respecting the other's guilt, it would be purely one of fact, and proper for the jury exclusively, as that of malice is. But that is not the question in such cases. It is true, indeed, as his Honor told the jury in this case, if a prosecutor knows the person whom he accuses to be innocent, or does not believe the apparent circumstances of suspicion against him, that then he has no probable cause for prosecuting, however other persons, not knowing or believing as he did respecting the evidence, might justly entertain suspicions of the party's guilt. But while a prosecutor's belief of the innocence of the person charged may deprive the former of the pretense of probable cause, it does not follow, e converso, that the prosecutor's belief of the other's guilt shall excuse him; for he must take care that he acts only on a reasonable belief, a just suspicion; in other words, that he had, under the circumstances in which he was placed, as found in fact by the jury, a probable cause to think the party guilty, so that he might fairly and honestly call him to answer the charge. It is not, therefore, what a prosecutor believed, but what he ought to have believed, that justifies. If he has not the capacity to weigh the circumstances (285) justly, or finds his disposition towards a suspected person interfering with the coolness of his deliberations and the impartiality of his conclusions, it is his plain duty to consult those whose passions are not heated and whose knowledge will enable them to judge more correctly, and not at once rashly to accuse an innocent person upon insufficient grounds. Now, our inquiry is whether, for the determination of the question as to the sufficiency or the insufficiency of the grounds of suspicion, supposing them to exist in fact, the court or the jury be the more competent; and we think, very clearly, that the court is, because it is a question of general and legal reasoning, and can best be performed by those whose professional province and habit it is to discuss, weigh, and decide on legal presumptions. The only argument against that is the difficulty in cases of many and complicated facts, and contradictory evidence, as in Plummer v. Gheen, of properly separating to the comprehension of the jury and to the satisfaction of the Judge the matters of law and fact. But that only proves the difficulty of deciding such cases, whether by the court or jury, and does not at all help us in saying whether this or that point should be decided by the one or the other. But, as was said by counsel in Panton v. Williams, 2 Adolph. Ellis, N. S., 169, however great that difficulty may be, it is one which a judge can deal with better than a jury, as he does with reasonable time, due diligence, and legal provocation, and the like; and in the case just referred to, which was cited by the plaintiff's counsel, the point now under consideration was, after elaborate discussion, decided in the Exchequer Chamber upon a writ of error to the Queen's Bench. The Court held unanimously that in an action of this sort, if the defendant sets up facts as showing probable cause, the judge must determine whether the facts, if proved, or any of them, constitute such cause, leaving it (286) to the jury to decide only whether the facts, or those inferred from them, exist; and as that is so when the facts are few and the case simple, it cannot be otherwise when the facts are numerous and complicated. It would seem, then, that making a question on this subject must be regarded as an attempt to move fixed things, and cannot be successful either in England or here.
As the case goes back to another trial, on which the facts may appear differently, we think it unnecessary to consider those that came out on the former trial in reference to the question of probable cause, further than to remark that few cases, perhaps, could better illustrate the danger of leaving that question to the discretion of a jury, whose decision of it is not susceptible of review in another court.
PER CURIAM. Venire de novo.
Cited: S. c., 30 N.C. 276; Vickers v. Logan, 44 N.C. 394; Brock v. King, 48 N.C. 48; Smith v. Deaver, 49 N.C. 514; Woodard v. Hancock, 52 N.C. 386; Emry v. R. R., 109 N.C. 595; Jones v. R. R., 125 N.C. 229; Moore v. Bank, 140 N.C. 303; Wilkinson v. Wilkinson, 159 N.C. 268.