Morris v. Moore

This is an action to recover damages for an alleged malicious prosecution of plaintiff by defendant, who, in an affidavit sworn to by him and filed in the justice’s court of San Diego township, charged that plaintiff, in violation of section 476a of the Penal Code, willfully and with the intent to defraud defendant, drew and delivered to the latter his check on a San Diego bank knowing that he had not sufficient funds in or credit with the bank to meet the cheek upon its presentation. After his preliminary examination before the justice plaintiff was discharged and the criminal proceeding against him was dismissed upon the ground that there was no sufficient cause to believe him guilty. Thereafter plaintiff brought this action for alleged malicious prosecution. The case was tried by the court without a jury. The trial court found that defendant instituted the criminal proceeding against plaintiff without probable cause and with malice, and gave judgment for plaintiff accordingly. Defendant appeals from the judgment and likewise from an order denying him a new trial. The order denying a new trial is not appealable and

[1] In an action of this character the burden rests upon the plaintiff to prove want of probable cause, which has been defined to be “a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.” (Lee v. Levison, 173 Cal. 169 [ 159 Pac. 440 ].) What facts, or whether particular facts, constitute probable cause is a question of law for the court. (Davis v. Pacific Telephone etc. Co., 127 Cal. 319 [ 57 Pac. 764 , 59 Pac. 698 ].)

[2] With these elementary principles in view we deem it unnecessary to go beyond an examination of the question of probable cause for the prosecution.

The evidence introduced by plaintiff discloses the following: Plaintiff, who had been employed as a chauffeur in the operation of automobiles on a stage route running out of San Diego, on May 29, 1921, at the city of San Diego, drew his check on a bank of that city for $109.70 and delivered it to defendant. The sum for which it was drawn was the amount due by plaintiff to defendant as the latter’s share of the proceeds of the sale of certain tires which plaintiff had sold for defendant. At the time when the check was drawn plaintiff was likewise indebted to defendant in about $400 for automobile accessories theretofore sold to him by defendant.

Defendant deposited the cheek in a bank at San Diego in which he kept his account. In due time that bank presented it to the drawee bank. Payment was refused by the latter institution upon the ground that plaintiff did not have sufficient funds. On June 4, 1921, defendant’s bank mailed him a written notice that plaintiff’s cheek had been returned unpaid for lack of funds. A few days later defendant met plaintiff on the street in San Diego and informed the latter that his check had been returned for want of sufficient funds to pay it.

Plaintiff, testifying as a witness in his own behalf, upon being asked by his counsel what he did when defendant informed him that the bank had refused payment on the check, testified as follows: “When he [defendant] told me there was not enough money for the cheek I couldn’t understand it. I thought there was something wrong, so I went

A week or so after the return of the check unpaid, the debt evidenced by that instrument still remaining unsatisfied and plaintiff still being indebted for the other sums which were due to defendant for automobile accessories previously sold by the latter to plaintiff, the two entered into an agreement whereby two automobiles which had been operated by plaintiff on a stage line running out of San Diego were turned over to defendant with the understanding that the former would continue to drive one of his

The arrangement whereby plaintiff thus- undertook to “work out” his indebtedness to defendant continued for about a month, when, without previous notice to defendant, plaintiff left San Diego and went to Taft, in Kern County, to seek employment there. According to plaintiff’s testimony, which on this appeal must be accepted as true, he mailed a letter to defendant about three days after leaving San Diego. He testified that he mailed it at San Bernardino while on his way to Taft, and that in it he notified defendant of his departure. Defendant testified that he never received the letter.

When plaintiff left for Taft the amount of the check and a considerable part, if not all, of his original indebtedness to defendant remained unpaid. Plaintiff took with him one of the two automobiles which he previously had delivered to defendant under the arrangement whereby he had agreed to “work out” his indebtedness.

On July 19, 1921, which was shortly after learning that plaintiff had left San Diego and gone to Taft, defendant called upon the district attorney of San Diego County and narrated all of the facts connected with the giving of the check, but he failed to tell about the subsequent arrangement which he had entered into with plaintiff to enable the latter to “work out” his indebtedness. Upon the strength of the facts thus related to him, the district attorney advised defendant that there was probable cause for plaintiff’s prosecution, and thereupon the criminal proceeding was inaugurated, resulting finally in plaintiff’s discharge, as already mentioned.

Upon these facts, unexplained, it is manifest that appellant did have probable cause for the prosecution. The facts and circumstances of which he had knowledge were such as would naturally excite the belief in a reasonable mind that respondent had committed the crime denounced by section 476a of the Penal Code—that is, that respondent gave the check knowing that he had not sufficient funds in or credit

Not only was the check returned unpaid for want of funds, but it never was paid, although some days elapsed between the time when appellant notified respondent of the return of the check unpaid and the time when the parties entered into the arrangement whereby respondent was to “work out” his obligation. This fact, unexplained, was sufficient to arouse in the mind of a reasonable man the belief that there were not sufficient funds in or credit with the bank to meet the check upon its presentation. And the fact that respondent never vouchsafed any explanation for the lack of sufficient funds in the bank—the fact that he never told appellant how it was that he made a miscalculation in his check stubs—although the situation was one which would naturally call for an explanation, if any there were, warranted a reasonable man in believing that when respondent gave the check he knew that he had not sufficient funds in the bank to meet it. And if respondent gave the check knowing that he had not sufficient funds in or credit with the bank, the inference was but natural that he drew it and gave it to appellant with the intent to defraud the latter. (People v. Kawano, 38 Cal. App. 612 [ 177 Pac. 174 ].) Moreover, respondent’s subsequent behavior, his surreptitious departure from San Diego, for example, was such as naturally would tend to strengthen the belief that he was a man who could not be trusted—a man who might give a check fraudulently, knowing that there were not sufficient funds in or credit with the bank to meet it when presented.

[3] Prom certain remarks made by the learned judge of the court below during the course of the trial we opine that the case was decided in that court upon the theory that the subsequent arrangement, whereby respondent undertook to “work out” all of his indebtedness to appellant, amounted to a settlement and satisfaction of the debt for which the check had been drawn, and that for that reason respondent’s crime, if he was guilty of any public offense, had been extinguished and he no longer was subject to prosecution. There is no valid basis for any such theory.

The record is barren of any fact tending to show that appellant ever agreed not to prosecute respondent. Had

A compromise arrangement entered into solely for the purpose of enabling a creditor ultimately to recover the money due to him from his criminal debtor will not suffice, of' itself, to bar a criminal prosecution or furnish evidence of a want of probable cause. Appellant had the legal right to the money evidenced by the check. Having such right, he had the legal right to make such arrangement for the payment of the debt as the parties might voluntarily agree to, provided, of course, there was no attempt at the compounding of a felony. “The defendant,” said the New York court of appeals in Fagnan v. Knox, 66 N. Y. 532 , “had a legal right to settle with the plaintiff, and receive payment for the amount abstracted as and for a debt upon an implied contract, and such settlement was no bar to a criminal prosecution, nor did it furnish evidence that the defendant did not believe that the money had been embezzled. The mere fact of settlement had no legitimate bearing on that question, certainly not against the defendant, and was equally consistent with a belief of guilt or innocence.” The Michigan supreme court states the rule thus: “When a plaintiff is shown to have taken and appropriated

The showing made by respondent at the trial in the court below failed to disclose a want of probable cause for his prosecution.

The appeal from the order denying a new trial is dismissed. The judgment is reversed.

Works, J., and Craig, J., concurred.