Hart v. McLaughlin

The action was for malicious prosecution. The defendant was a witness in his own behalf. In the course of his testimony he swore that in the month of January, 1897, and before he had made the complaint upon which Hart was arrested, and which lay at the basis of the action, he had a talk with one Elkan, and he was asked what Elkan said to him about Hart. The question was objected to as incompetent, immaterial, irrelevant, and hearsay. The objection was overruled, and the plaintiff’s counsel excepted to the ruling. In reply to the question, and to several others of the same nature, the defendant testified substantially that Elkan told him that Hart was one of the worst men he knew; that he had been in prison in Boston, was one of the biggest crooks in New York City, and that he knew -Hart was going to do him; and that Hart had been in trouble in St. Louis and Chicago, and had to clear out and leave both those places. The

In our judgment, the exception is well taken, and the admission of this evidence was fatal to the judgment. It was admitted generally in the action, and so the jury were entitled to consider it as bearing, not only upon the question of damages, but also on the question of probable cause, and undoubtedly they did consider it upon that point. That the evidence is hearsay is quite apparent, but it is claimed to be material because it is urged that when one is attempting to show that he had probable cause for making a criminal charge against another he has the right to take into consideration the character of that person. The defendant insists that if the person against whom the charge is made is notoriously a man of bad character, and has been convicted of other crimes, or is one whose reputation is not good, a reasonable man may believe that such a person has committed a particular offense upon less proof of its commission than if he were a man who bore a good character in the community. It is quite possible that may be true, and in view of that possibility it has been held in other states that in actions of this nature proof of the general reputation of the plaintiff would be competent as bearing upon the question of probable cause, as well as in mitigation of damages. Bacon v. Towne, 4 Cush. 217 ; Barron v. Mason, 31 Vt. 189 ; 2 Greenl. Ev. § 454 et seq.

Whether we concur in the result of these cases it is not necessary to consider, because the testimony admitted over the plaintiff’s exception cannot be said in any way, to afford proof of the plaintiff’s general reputation, which is all that is said to be admissible in the cases above cited. Eor was it proof of any fact, and therefore it is not within the reasoning which has led some courts to suggest, but not to decide, that evidence that the plaintiff was guilty of a crime of the same nature as the one for which the defendant caused him to be arrested is competent as bearing upon the question of probable cause. Barron v. Mason, 31 Vt. 189 . All that the testimony amounted to was a statement of a person not under oath of his opinion that Hart was a bad man and a crook, and a story that he had been in prison in Boston, and had been in trouble in St. Louis and Chicago, and had had to leave those places. It was hearsay as to specific facts which may or may not have been true, and which if true did not necessarily show that Hart had been guilty of any crime. So far as it was an opinion, it was a statement of one person of what he thought of Hart, based, probably, upon his own experience, or probably upon his dislike. It did not purport to be a statement of the reputation which Hart bore in the community. Whenever the reputation of one is in question, or whenever that reputation is material in enabling another to form an opinion, it must be shown, not by specific acts, nor by an opinion based only upon specific acts, but upon the general reputation which the man bears in the community, and in no other way can it be proved. People v. Greenwall, 108 N. Y. 296 -302, 15 N. E. 404 .

There was nothing in the evidence which would justify the defendant in coming to the conclusion that Hart was guilty of the crime which he charged against him. The evidence had not the slightest tendency to afford a reasonable man ground to believe that Hart was

The judgment and order must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

VAN BRUNT, F. J., and McLAUGHLIN, J., concur.

(dissenting). It is not disputed but that upon the evidence a question was presented for the jury as to whether or not the plaintiff had sustained the burden of proving the want of probable cause of the plaintiff’s guilt of the crime of which he was charged. If the testimony of the plaintiff is to be believed, it is quite evident that there was no cause for the arx’est; if the testimony of the defendant is to be believed, it is quite evident that not only had he probable cause for believing the plaintiff guilty of the crime of which he was charged, but that the plaintiff was guilty of such crime, and should have been punished. In an action of this character, to entitle the plaintiff to recover, it must appear that the defendant acted maliciously, with a wanton desire to injure the plaintiff, and that the defendant also acted without probable cause to believe that the plaintiff was guilty of the crime charged. It is, however, the settled rule that the actual malice necessary to sustain the charge may be presumed from the proof of want of probable cause, but such want of probable cause is essential to the maintenance of tlxe action. Probable cause has been defined as “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged. However innocent the plaintiff may have been of the crime laid to his charge, it is enough for the defendant to show that he had reasonable ground for believing him guilty at the time the charge was made.” Foshay v. Ferguson, 2 Denio, 619 . Thus, the crucial question in the action is the information which had come to the defendant, and upon which he acted at the time the charge was made. It is also settled that the defendant is entitled to prove statements made to him as to facts upon which the charge is predicated, and which he was justified in believing as an answer to proof made by the plaintiff as to want of probable cause. This evidence is not hearsay, for it is not received as proof of the facts stated, but as proof of the condition under which the defendant acted in making the criminal charge. A defendant in such an action may prove the existence of facts within his own knowledge which tended to induce the belief that the plaintiff was guilty of the crime charged, and he is also entitled to prove statements made to him by others which tend in the same direction. A person under such circumstances has not the power to subject those making statements to him to an examination under oath. He is bound to act upon appearances as they are presented, and if, from the facts of which he has knowledge and statements made to him by persons entitled to belief, there was probable cause that the

I do not think that there was error to justify a reversal of the judgment.