Fulmer v. Harmon

Richardson, J.
delivered the opinion of the Court.

The question is, whether the return of the grand jury, of “ no bill” againsl Jacob Fulmer, is prima facie sufficient evidence of the want of probable cause for the prosecution brought by John Harmon against the said Jacob Fulmer, so as to bring the present action before the jury, and save the plaintiff from a non-suit.

In the MSS. case of David Myers ads. John Slider and wife, the same evidence of “ no bill” by the grand jury, upon an indictment for perjury, was held by the presiding Judge to be prima, facie sufficient evidence of the want of probable cause; and the motion for a non-suit was overruled. And *580upon a verdict being found for the plaintiffs, the case was carrje(j †0 the, then, Court of Appeals, upon that ground 'among others, to wit: 1. Because the warrant was not prov-ecp g. Because the plaintiffs did not shew a want of probable cause. 3. Because there was no evidence who was the prosecutor. 4. That on the plea in abatement, his Honor erred in instructing the jury, that the marriage between Platt and the plaintiff, Ann, was not sufficiently proved. 5. That the verdict finding the plaintiff to have been lawfully married, is contrary to law and evidence. 6. That the Verdict on the merits, is contrary to law and the evidence.

The decision in the Court of Appeals, in this case, has never been published. But it appears endorsed upon the report of the case, in' these words, to wit: “ This case presented a mixed question of law and facts, proper for the consideration of the jury, under the direction of the Court, and this Court do not feel authorized to interfere with the verdict. Motion refused.” Not a word more is said ; and it is difficult to perceive, in these terms, that the Court of Appeals decided the precise point, to wit: that the Circuit Judge was right in law, in deciding that the return of “ no bill” was sufficient proof of a want of probable cause for the prosecution, so as to bring the case before the jury.

That, was a question of law, for the Judge, exclusively.— And yet the Court of Appeals say, “ the case presented a mixed question of law and facts, proper for the consideration of the jury,” &c. and the appeal is dismissed; which would seem, to a common intent, to overrule all the grounds of the appeal. And yet there is not a word relating to the precise question, made in the present case — not a word that “ no bill” indicates want of probable cause. But in practice, perhaps, by all the Judges, such has been the construction.

How, then, are we to treat the decision now, that its uncertainty is manifest, but by considering the present question as still open ? This is the construction put upon it by the Court. We are obliged, therefore, to consider the question now made, de novo.

I here take the occasion to remark that I was, myself, the presiding Judge in the case of Slider and Myers ; and it so happens that I am now to review my own decision in that case. And I propose to shew that it was erroneous; and ought to have been overruled, as we now overrule the present Circuit decision, for the following reasons :

In order to maintain an action for a malicious prosecution, it must appear that the defendant had instituted the prosecution without any probable cause, and also through malice.— This is the law without dispute. The plaintiff must, therefore, of course, shew the state of facts that indicates malice; and also shew a want of probable cause; or he subjects his *581action to a non-suit. So that the question for decision is, whether throwing out the bill by the grand jury — that is, t returning it “no bill,” indicates such a want of probable' cause. Throwing out the bill by the grand jury, is entirely at their discretion. They are by no means bound to find the bill, although probable cause exist, and is laid before them.

4 Taunt. 7.
Taunt. 187.
qE _ ^47.'L
It is not unfrequent that one grand jury ignores a bill, and another grand jury finds it “ true bill.” And although “ true bill” infers prima facie probable cause for the prosecution, yet “ no bill” does, by no means, indicate the converse; or that there is no probable cause. “ No bill” is a mere stop in the prosecution ; which may be again resumed, and proceeded in, even before the same grand jury.

It would, therefore, be highly dangerous to prosecutors, if throwing out of the bill were to be proof of the want of probable cause for the prosecution. It would not only be perilous to prosecutors, but such a consequence would introduce an influence to constrain or restrain the grand jury, in their high and necessary discretion, to find or not to find the bill as the public good or good policy points out. “ No bill” returned by the grand jury, is precisely like a nolle prosequi by the solicitor. It merely suspends the prosecution, but leaves it in expectancy. Let me illustrate this by adjudged cases.

In the case of Sinclair v. Eldred, the Court decided that, in an action for a malicious arrest, the plaintiff can recover no damages, unless malice be proved, of which the first action being non prossed, is not of itself evidence. In the case of Byne v. Moore, where, in an action for maliciously indict-5 ing for an assault, the plaintiff gave no other evidence than the bill returned “ not found,” and was thereupon non-suited, the Court refused to set aside the non-suit. In deciding this case, C. J. Mansfield says: “If this action could be maintained, every bill which the grand jury threw out, would be ground for an action.” And Chambers, J. says : “ It would be a very mischievous precedent, if the action could be supported on this evidence.” [See also 1 Camp. 203, 204, in note; Hammond’s N. P. 244, post 580 ; Burley v. Bethune, Yelv. 105, a note.] See also the well considered case of Williams v. Taylor. The Court say: “In an action for a malicious prosecution, the plaintiff is to give prima evidence of want of probable cause, which the defendant may rebut, if he can.” “ The plaintiff must take the first step ■, because it is not to be presumed that any one has acted illegally.” “ There must, therefore, be some evidence of want of probable cause, before the defendant can be called on to justify his conduct in prosecuting.”

Here we have the established rule of practice. But how *582is it possible to transmute a mere suspension of the prosecution, by “ no bill,” which is a mere non pros. as in the first case quoted, into affirmative evidence that there was no probable cause 1

But again, want of probable cause is the legal foundation of an action for a malicious prosecution : inasmuch as the inference of malice may be presumed, from a total want of probable cause. It would follow, therefore, of course, that if “no bill” indicated want of probable cause, then, “no bill” might prove, by inference also, that there was malice. And thus, would be verified what has been said, if the decision in the case of Myers ads. Slider were really as has been supposed, to wit: that every prosecutor would go before the grand jury, in terror of a malicious prosecution, — that is, if the grand jury should see proper to suspend the prosecution, by returning “ no bill.”

If, then, such a decision had been truly made, this Court would be obliged to consider it as bad law, and to reverse it. These views are so convincing to my understanding, that I readily give up my former error; and would be happy if the. present Circuit Judge, who was led to follow it, would likewise be convinced.

Finally, let it be once more observed, that although the action for a malicious prosecution lies at law, on account of the malignity that someties induces prosecutions: yet, such actions are not to be encouraged. As to. the question, whether the Court ought to order a non-suit or a new trial, this Court is not to speculate upon the consequences of a rehearing. The jury must be left without the smallest, bias. We merely decide a strict law point, and no moxe, and leave the c.ase. But this Court deems it more just and proper to order a new trial, rather than a non-suit; because the Circuit Judge adjudicated upon the apparent decision in Myers and Slider ; and it is very possible that the plaintiff’s counsel arranged his evidence and. restricted it in virtue of the same decision. If so; it would be unfair to non-suit the plaintiff under such circumstances.

A new trial is, therefore, ordered, with the least possible prejudice to either party, or even alluding to the merits or demerits of the action. In all those respects, the jury are not to be biased pro or con.

Wardlaw. J — and Frost, J. — concurred.

New trial ordered.

Evans, J.
To say that the single fact that the grand jury returned “ no bill,” will of itself be evidence of both malice and the want of probable cause, would, I fear, greatly impede the course of justice, and be a great temptation to prosecutors to commit perjury. But if to that be added proof, *583either direct or inferential, that the prosecution was influenced by sheer malice, and not by the honorable motive of punishing a real or supposed crime, that I think would be sufficient. And I will not undertake to say that proof of an unquestionably good character, which placed the accused high above suspicion of guilt-, would not, with the finding of the grand jury, be sufficient. There should be something in addition, and this I think is well supported by authority.

5 Taunt. 187.
In this case I agree with the majority of the Court, that there should be a new trial. What is probable cause, is, when the facts are ascertained, a question of law; and in this cake the evidence discloses so many suspicious facts, which are unexplained, that I think there should be another investigation before anqther jury.

O’Neall, J.
dissenting. — In this case, it is my misfortune to differ so much from a majority of the Court, that I am constrained, very much against my wishes, to express the reasons for my dissent from their opinion.

That which I have regarded as settled law, for more than twenty years, I am now told is no law, at all. A case decided in ’28, in which it was held that the finding of a grand jury “ no bill” and the consequent discharge of the party by the Court constitute prima farde evidence of want of probable cause, is now to be reversed, and for no other reason, which I can perceive, except that it has not been printed. In Slider v. Myers, the defendant set on foot a prosecution for perjury; he and a man of the name of Prowell made a joint affidavit charging the perjury. There was no evidence whatever of a want of probable cause, save the finding “ no billa motion was made for a nonsuit: the presiding Judge (Richardson, J.) overruled it, holding expressly, that the “ no bill” was prima fade evidence of want of probable cause. The case went to the jury, and the Judge charged them, that “ the finding by the grand jury was only prima facie evidence of the want of probable cause, and that the defendant’s own oath, when the warrant was taken out, which the plaintiff introduced, supported by the testimony of Prowell and Herron, rebutted the presumption arising from this finding of the grand jury, as I thought (said .the Judge) very strongly, if not conclusively.” Notwithstanding this charge, the jury found for the plaintiff $1000. A motion was made in the Court of Appeals for a nonsuit, on the ground, amongst others, that there was no evidence of a want of probable cause. The case of Byne v. Moore, which is the strongest authority relied on for the defendant* was cited in the argument of that cause. But notwithstanding that, the Court of Appeals dismissed the motions, both for nonsuit and new trial, with the remark that “ this case presented a mixed question of law and fact proper *584for the consideration of the jury, under the direction of the Court, and this Court do not feel authorized to interfere with the verdict.”

M~Mu1. 74.
13 Pet. Abr. 296.
9 East, 361, & 1 Camp. 199.
1 Camp. 199. Note A. 203.
Ib. note A. 203.
From that time forward, I took the law to be settled by that case. Entering upon the duties of a Judge, in the course of that year, in the various cases of malicious prosecution tried before me, (and it will be seen on referring to the reports, that many such cases have passed through my hands,) I continued to rule and hold that the finding by the grand jury of “ no bill” and the discharge thereupon by the <. fourt constituted prima facie evidence of a want of probable cause. In no case until this, in twenty-one years, has this ruling been questioned! In Cockfield v. Bramboy, in delivering the opinion of the Court, it was said: “ The mere letting fall a prosecution does not raise an implication of a want of probable cause. The only cases where that is implied, are when the grand jury find “ no bill,'’ or the defendant is acquitted by the petit jury, and the presiding Judge orders a copy of the indictment.” In the opinion containing this recognition of the rule of Slider v. Myers, Judges Richardson and Wardlaw concurred without note or comment. If it had been wrong, it is strange it should have then escaped without qualification by one or the other of these Judges 1

I have looked over the English cases, and into a very well considered case in Massachusetts, and I think there is no such inflexible rule, as that undertaken now to be set up, that the finding “no bill” by the grand jury and the discharge thereupon by the Court are not prima facie evidence of a want of probable cause. The case of Byne v. Moore presented various other reasons for the nonsuit, besides that relating to the want of probable cause. The indictment there was for an assault and battery, and in such a case a misdemeanor, involving no disgrace,-it is clear there must be proved to sus- tain the action, actual injury, express malice, and want of probable cause. There was no proof of the two first, and Lord Mansfield puts his judgment as much (if not more) up- on the ground that there was no proof of actual injury.

InPurcell v. McNamara, thelaintiff was acquitted by the petit jury, and the only ground of the want of probable cause relied on was. that the defendant (the prosecutor) being called, at the trial, did not answer. This was held not to be evidence of want of probable cause. In Sykes v. Dunbar, “no bill” was found by one grand jury, and “true bill” by another, on which the plaintiff was acquitted, for want of prosecution: this was held not enough to negative probable cause, and for a very good reason. For the finding of a sub- sequent true bill shewed probable cause, and an acquittal for want of prosecution was no evidence of want of it, according to the case in the text. Incledon v. Berry was a repetition *585of the same ruling, “ that the mere non prosecution of a charge made on oath against another was not sufficient to maintain such an action,” malicious prosecmion.

2 ’499‘ Rice’ 51.' RiceiS06-
19 Eng, c. L. Rep. 47.
4~Eng. C.L.
1. McMul. 558.
In note A. p. 206, the reporter points out the distinctions, how far probable cause is a ques.ion of law, and how far it is one of fact, and also when malice is necessary to be proved, in addition to the want of probable cause. These matters are, it is true, fully pointed out and enforced in Lipford v. McCollum, Frierson v. Hewitt, Perdue v. Connerly, Sitton v. Farr, but inasmuch as our own cases are often lost sight of in the desire to exhibit much learning, I thought it might not be amiss to turn to the note already cited.

In Williams v. Taylor the defendant had indicted the plaintiff for perjury; the two first bills, when the defendant did not appear before the grand jury, were thrown out; the third was found ; it was suspended for three years, when it was called for trial; the defendant was in Court, but did not appear to give evidence on being called; the plaintiff was acquitted. The Judge below nonsuited the plaintiff: but, the Judges of the Common Pleas all concurring, the nonsuit was set aside, on the ground that there was sufficient evidence of a want of probable cause. In it Park, J. said, what I believe to be law-“ slight evidence is sufficient to throw on the other side the otiusot shewing that there was probable cause.” This was a very important modification of Purcell v. McNamara, and in favor of the action, instead of narrowing the grounds to sustain it, as is about to be done in this case.

It istrue, in Panton v. Williams, the Judges assembled in the Exchequer Chamber, held, in 1841, that the question o~ probable cause was for the Judge, and that he was to tell th~ jury on all the facts, whether probable cause had or had not been made out. But I think the case, when examined, only holds what is the true rule.-" the Judge's business is to tell the jury what constitutes probable cause, and then it is for the jury on the facts to say whether it has been proved to exist or not." For in that case the Judge left the whole question as one of fact to the jury. But if the case decides more than that, it is directly at war with our cases, Lipford v. McCollum, Perdue v. Connerly, Sitton v. Farr, and Parris v. Waddell, in all of which it was held, as I have before stated, that the Judge was to tell the jury what constituted probable cause, and then it was for them to say whether it existed or not. In Parris v. Waddell, Butler, J. said-"The general rule is recogniz€d, that where the facts are contested, probable cause is a mixed question of law and fact, to be decided by the jury under the instructions and explanations of the presiding Judge." This was no obiter dictum, but was expressly in answer to the let and 2d grounds of appeal. *586In all the other cases the opinions were delivered by myself, and therefore I make no extracts from them.

24 Pick. SI.
In Stone v. Croaker, which was an action for malicious prosecution, the proof on the part of the plaintiff was certainly less than here, — the complaint of the defendant to a justice of the peace, charging the plaintiff with the theft, and the record of the trial and discharge of the plaintiff by another justice of the peace, was that relied on by the plaintiff. This discharge was held by the Judge presiding, Wilde, J., tobe pri-ma facie evidence of want of probable cause. It is very true, the Court of Appeals laid down the general rule, that “amere acquittal, or that the defendant abandoned the prosecution,” was not enough. This I do not doubt, when the word acquittal is properly understood, for it means, as I understand, a legal ending of the case on a trial, in which both parties are heard. In that case, however, the Judges took the whole evidence, and .agreed with the Judge below, that there was ■not probable cause, and the verdict was sustained. From this review I think there is nothing which ought to interfere with the decision in Slider v. Myers.

But it is said it would subject prosecutors to continual actions, if the mere ignoring of a bill by the grand jury, and. the discharge by the Court of the plaintiff, would be enough to shew prima,tfacie want of probable cause! Certainly there can be no force in this objection, when It is remembered that whatever the defendant, or even his wife, swore to-before the grand jury, is evidence for him: and if it discloses a reasonable ground, it is enough for his protection, unless it be shewn .that he knowingly made a false statement. One would think, that when the law thus gives a man-the privilege of being judged-out of his own mouth, that itnugbt to be all which justice could -demand, unless it be, as is often the case, that justice is the last thing which a defendant in a :Court of justice desires ! Judges, however, ought to be-the ministers of justice, and ought not to suffer dislike of particular actions .to influence their determination. I know malicious prosecutions are not favored. But by .that I do not understand more than that .the plaintiff is required to make out his case; when he does so, he stands as fairly before the Court as any other party. It is, however, urged that “no bill” by the grand jury may be the result of their discretion and not from a just examination of the facts. Concede for a moment, that this is ■so, and how stands the argument; —for the-defendant, or against Mm-? I confess it seems to me that it is more against him than any other. Such a finding, if written out, would be in substance this, “ we find this matter to be of so trifling a character, that we think it does not deserve further examination.” Ought not a man preferring such a charge to be visited as severely with punishment as one who, without a *587fact to sustain him, sets on foot a criminal prosecution? But-“no bill” by the grand jury means, in every legal intendment, that there was no evidence to sustain the indictment. Sittan v. Farr.

Rice 309.
. In this case, however, although I thought that the “ no bill” of the grand jury, and the discharge of the plaintiff was evidence of a want of probable cause, yet the plaintiff added to it evidence of good character, and upon these combined, I ruled that a prima facie case was made out. The Court do not order a nonsuit: but they undertake to do that which I pronounce them utterly incompetent to do, to review the testimony, and to say, against the opinion of the presiding Judge and the jury, that there was probable cause! The moment the Court decides there is evidence of a want of probable cause,, the question becomes, as is said in Slider v. Myers, a mixed question of law and fact; that is, the Court is to tell the jury what constitutes probable cause, and then it is for the jury to decide,, on the proof, whether the plaintiff had or had not probable cause, when he instituted the prosecution. All this was done, on this occasion; and a review of the facts stated in the report, will, 1 dare say, make different imppressions on different minds. For example, owners of plantations out of Newberry district, where the defendant is unknown, may think he had probable cause. But men who do not employ overseers, and even owners of plantations in Newberry, where the defendant is well known, 1 think, would hardly be persuaded he had probable cause. Two fads in the case, added to the finding of “ no bill” and the discharge by the Court, satisfied me that the defendant had no probable cause : 1st. The character of the plaintiff, which certainly was an extraordinarily good one, proved for so humble a man as the plaintiff, and this too known to the defendant, for he had been for two years previous his overseer; 2d. That the defendant knew of the facts, on which he made the charge of larceny, certainly in the summer of ’47; but notwithstanding, he continued the plaintiff, as his overseer, until .the end of the year, and even then, did nor institute the prosecution until February, 1848, when he had been sued, in slander, for vei-bally charging the plaintiff with stealing his corn.

It has, however, been argued here, that this verdict was the resit it of excitement against the defendant out of doors, got up by the plaintiff and his friends. It has been characterized as the verdict of King Mob! I think this is a mere notion. The defendant is, I know, an unpopular man. Whether justly so or not, I will not pretend here to say. I have long been in the habit of regarding him with kind feelings; and have been disposed to throw the mantle of charity over many of his early faults. I think this may also be a pretty general feeling in the district. I am sure of one thing, that no jury *588in Newberry, which I ever saw empannelled, in nearly forty years, would wilfully do the defendant injustice. I can say here, that I endeavored, with all the influence I possessed, to keep the jury from visiting the defendant with two heavy a measure of damages ; and in that respect he certainly had a very eiflcient protector in the intelligent foreman, who had himself too often encountered prejudice, not to know the importance of preventing it from having effect in a jury room.

But it is said that this verdict is too high; it is more than I would have found; but notwithstanding that, I cannot say the jury have exceeded their just powers. If this be the case with the presiding Judge, how can the Court of Appeals regulate it? Have they had the facts spread before them by the witnesses? Do they know the plaintiff and defendant? No! But the jury do ! Who is most likely to decide right, the jury or this Court? I have no hesitation in saying, the jury ! and I shall not be surprised, if John Harmon, like Johnson and Hanahan, should find that a new trial, instead of benefitting him, should increase his grief by making him pay a larger sum by way of damages.