Dennis v. . Ryan

This is an action for malicious prosecution, and the question presented for our decision on the present appeal is, whether a witness, on whose testimony, *Page 390 stating facts that did not constitute a criminal offence, an indictment for forgery has been found against a party at a Court of Oyer and Terminer in this State, and where the jury on its trial, by direction of the court, rendered a verdict of not guilty, on the ground that the facts alleged and charged did not impute that crime, is liable in such an action to the party indicted, and discharged for the reason so assigned.

The case, as presented by the evidence, is substantially this. The plaintiff was indicted by a grand jury of Cayuga county, in this State, at a Court of Oyer and Terminer held therein, by an indictment alleging that he and William Dennis had forged a bond, made and executed by one William Sanders to Jonathan Ryan, for the payment of $625, with annual interest from its date — on the back of which, "was indorsed forty-five dollars in part payment thereof," payable one year after its date, and the forgery was stated to be in altering the bond — by "falsely and feloniously separating the aforesaid indorsement from the said bond or writing obligatory, and by falsely and feloniously erasing and removing the aforesaid indorsement from the back of the aforesaid bond or writing obligatory, with intent to defraud and deceive the said William Sanders, and with intent to cheat and defraud one Charles Ryan, who had assumed and agreed to pay and discharge the said bond, to the great damage of the said William Sanders and the said Charles Ryan." The said Charles Ryan is the defendant in this action. The district attorney of the county, who had charge of the prosecution, testified, among other things, as follows: "In the first place, Charles Ryan came to me and made a statement of the case; I told him in my judgment it was a forgery; I talked with him about it; I am unable to say what I said or what he said; I issued the subpœnas and the witnesses came before the grand jury, and they found the bill; I drew it and it was presented to the court and filed on the 7th day of October, 1869. The indictment came on for trial at the November sessions." He also said that Ryan was sworn before the grand jury and on the trial of the indictment, and *Page 391 he mentioned and stated the testimony of Ryan given on the trial, tending to show that the indorsement had been made and the parties indicted had erased it, with the intent of defrauding him. He further testified that Ryan, when he first came to him, stated the case and the evidence substantially as it was testified to on the trial; that he thereupon advised him that there was an offence committed; that in his judgment the parties were guilty, and that Ryan and other witnesses afterwards, on being subpœnaed for that purpose, went before the grand jury, and they found the indictment as above mentioned. He also made the following statement: "Charles Ryan knew nothing about the arraigning of the prisoners; I did it in my usual course as district attorney; I don't know as I made any difference between that case and others; from the time Ryan stated the case to me, up to the close of the matter, I proceeded in the ordinary manner; there was no difference in this case and other cases of the kind; I felt interested in the case and took more pains in it than in some."

He also stated that the allegation in the indictment of the amount indorsed was forty-five dollars, and the evidence was forty-three dollars and seventy-five cents; that the trial of the cause was not upon its merits, but that it went off on the motion of the prisoner's attorney therefor, on the ground of such variance, and also on the ground that an erasure of the indorsement was no alteration of the bond, and not an offence. That "the principal ground was, that it was no offence to rub it out, if it had been erased; that the rubbing of it out was not an alteration of the bond as charged in the indictment;" and upon that, the court directed the jury to find a verdict of not guilty, which was accordingly found, and thereupon the prisoners were discharged. It must be assumed that the testimony given before the grand jury was substantially the same as that on the trial.

The result of this evidence, so far as it relates to the acts of the defendant, is, that he stated certain specific facts relative to the indorsement and its erasure to the district attorney *Page 392 and before the grand jury; that upon a mistake of the law applicable to those facts, as held by the court on the trial, the indictment was found charging the parties indicted with the crime of forgery, when, in truth, the act which was the basis of the indictment did not constitute such offence, and that he did nothing further, in relation thereto, afterwards, than giving his testimony on the trial. The learned judge, on the trial of the issues in the present action, instructed the jury, among other things, in reference to the allegation of the erasure of the indorsement as follows: "The court is of opinion that it did not impute a crime, and that the offence of forgery was not imputed by the facts as they appear, but, for the purposes of this prosecution, it is precisely the same as though the offence charged in the indictment was a crime, and you are so to consider it, * * * and the action is sustainable in our view, precisely the same as though there was a crime alleged." And he refused to charge the following propositions, or any or either of them: First. That if the erasure or obliteration of the indorsement from the bond did not constitute a crime, then no action would lie. Second. That the grand jury, having found an indictment for that which was not a criminal offence, and the plaintiff having been arrested upon that indictment, the defendant is not liable in this action. Third. That even if the defendant made false statements of facts to the district attorney, or even to the grand jury, in regard to the proofs or evidence by which the allegations or charge of the obliteration or erasure of the indorsements on the bond could be proved, that even then, as long as no crime was committed or charged, such statements were entirely immaterial, and did not amount to false statements or charges of crime, and therefore the defendant is not liable." The theory or ground on which the portion of the charge above referred to was made, and the refusals to charge as so requested were founded, was substantially embraced in the following statements to the jury: "That a party who instigates a prosecution of this kind cannot screen himself behind the allegation or claim that the offence committed was not a crime, * * * that for the *Page 393 purpose of this action it must be deemed a crime, because the defendant instigated it, being advised that it was a crime, and the plaintiff here was brought to trial upon an indictment, and, so far as he was concerned, he is injured to the same extent as though the allegations contained in the indictment amounted to crime in fact."

That if the defendant "knew that the accusation he made was unfounded, and that the statement of facts upon which the indictment was found were untrue, * * * then he procured the plaintiff to be indicted, and subjected him to the trouble and jeopardy of a trial in court for a crime by means of false statements, and must be held responsible."

It will be seen, from the preceding extracts, that the learned judge treated the defendant as the party who instigated andprocured the indictment, entirely overlooking and ignoring the material fact that he only made certain statements to the district attorney and grand jury for their consideration and judgment, and, in effect, did nothing more than to leave it for their decision whether the facts stated constituted a criminal offence; and there is no ground for saying that he, assuming him to be the original complainant, asked for an indictment for forgery, or any offence whatever, unless those facts justified it. His complaint was the means or cause of the investigation into the truth of the matters to which it related by the proper officer and tribunal, and the grand jury, with the aid and advice of the district attorney, their legal adviser, as to the legal effect, found the indictment under which the plaintiff was afterwards tried and acquitted. The wrong done to the plaintiff was the result of a mistake by the appropriate tribunal as to the legal effect of the charge made by the defendant, resulting in the indictment and the proceedings thereon, which were not warranted or authorized by any matter communicated or testified to by the defendant, and he was not responsible for the mistake in law made by others in determining whether or not the act complained of was an indictable offence, and he, therefore, cannot properly be said to have instigated or procured the particular indictment *Page 394 in question. He cannot, in view of what was said and done by him in relation to it, be considered as standing in any other relation than that of a witness. He was in no sense the party who obtained or prosecuted the indictment. Under the principle of the ruling at the Circuit, if a grand jury, on evidence given by a prosecuting witness of adultery by a party, indict him for bigamy, or if they, on a complaint of assault and battery only, indict an individual accused thereof with the crime of murder, the person making a legal and proper complaint can be held liable for the illegal action of the grand jury.

The learned justice, giving the opinion at General Term, in disposing of this question, said: "The rule is, that where a party, knowing that a certain act does not constitute a crime, procures another to be indicted for a crime, or where hesupposes or believes such act, if done by another, would constitute a crime and falsely and maliciously accuse such other of the commission of the act and procures him to be indicted, the action for a malicious prosecution lies," and he refers to 1 American Leading Cases (218), where he says, "nearly all the authorities, English and American, are collected."

The first part of that rule, so laid down and assumed to be the law, has no application to the present case. It is based on the assumption that the complainant knew, at the time of making his complaint against a party, that the facts alleged did not constitute a criminal offence, and that he neverthelessprocured an indictment against him for a crime. Here, as I have already shown, the defendant did not have such knowledge, nor did he procure the plaintiff to be indicted.

The latter part of the rule, or proposition, is not sustained by the authorities to which reference is made to sustain it. They are to be found in a note, by Hare and Wallace, to the case ofMunns v. Duport (1 Am. Lead. Cas., 208). It is there said, that it is certainly only in case of a crime, or at least an indictable offence, involving moral turpitude, the verbal imputation of which would be slander, that the mere preferring of an indictment or issuing a warrant or other institution of a *Page 395 criminal proceeding, without arrest or special damages, is indictable. Then there is in the same note the following statement: "If a person state facts to a magistrate truly, which do not amount to a felony, or constitute a different felony, and the magistrate, of his own motion, erroneously issue a warrant for felony or for another felony from that stated, the person is not liable for malicious prosecution." In support of that the following, among other authorities, are cited, viz.: Leigh v.Webb (3 Esp., 165), McNeely v. Driskill (2 Blackf., 259) and Bennett v. Black (1 Stew. [Ala.], 495).

In Leigh v. Webb (3 Esp., 165), the action was for a malicious prosecution. The declaration contained four counts, substantially charging that the defendant had, without probable cause, procured him to be imprisoned under a warrant obtained on a charge of felony. It appeared, however, that the information to the magistrate contained a statement of facts, showing a loss of certain casks belonging to the defendant, but not constituting a felony, and containing no direct charge of the offence in terms against the plaintiff. The warrant issued on that information, and on which the plaintiff had been arrested and committed for further examination, recited or stated that the charge against him was "on suspicion of having feloniously taken and having in his possession casks, the property of the defendant." Lord ELDON nonsuited the plaintiff, saying: "There is no charge of felony contained in the information. It contains a state of facts certainly not amounting to a felony, but for which an action of trover could be maintained. The defendant having lost his property, states the facts to a magistrate, upon which he is to form his judgment. If the highest criminal judge of the land was, by a mistake of judgment, to conceive that to be a felony which did not amount to that offence, and to commit the party complained against, would that subject the party complaining to an action of this sort? I am of opinion it ought not, and that the plaintiff must be nonsuited."

In McNeely v. Driskill (2 Blackf., 259), it appeared that Driskill had been arrested on a warrant issued by a justice of the peace on an affidavit of McNeely, which did not authorize *Page 396 the justice to issue it, and from which Driskill was afterwards discharged by another justice of the peace. Thereupon Driskill brought an action against McNeely for wrongfully and maliciously prosecuting him on a charge of larceny, and obtained judgment, from which an appeal was taken by McNeely. On the decision of the appeal, SCOTT, J., said: "That the affidavit on which the warrant was issued showed a state of facts on which an action of trover might have been obtained, but it contained no charge of larceny against any person." He then says: "The appellant had lost his property and wished to recover it. He states that fact to a justice of the peace. The justice forms his judgment upon the facts stated; he issues his mandate to an officer to search for the property and to bring the person in whose possession it may be found before himself or some other justice of the peace, etc. This was an error, but it is the error of the justice, but not of the appellant; and if a justice of the peace, by mistake of judgment, conceives an act to be felony which is not felony, and in consequence of that mistake causes an innocent person to be arrested and imprisoned, the law will not hold the person who made the complaint responsible in this form of action for the consequences of such errors." (Citing 3 Esp., 165, supra.)

In Bennett v. Black (1 Stew. [Ala. R.], 494), the declaration averred that the prosecution, for which Bennet was sued as having been malicious, was for a robbery. It appears the proceedings were instituted on his information of certain acts by Black, constituting a trespass, in reference to which he made an affidavit before a justice of the peace, whereupon the justice issued a warrant charging robbery against Black, under which he was arrested. A recovery was had by the plaintiff, and the Supreme Court, in the opinion delivered by Judge PERRY, for the reversal of the judgment, said: "The court are of opinion that if a justice of the peace or any other judicial officer, to whom application may be made for a warrant for the apprehension of offenders against the criminal law of the land was, by mistake of judgment, to conceive that to be felony which, from the facts sworn to, did not amount *Page 397 to that offence, and should the party complained against be committed to jail, it would not subject the party complaining to an action of this sort. If it could, it would subject every prosecutor to an action for the acts of the criminal judge, which is too unreasonable to be admitted."

It was said in that opinion that it had been contended in argument, and it was admitted by the court, that a person might subject himself to this form of action for carrying on a prosecution in a court having no jurisdiction of the offence, and where an indictment was defective. But it was added that in both of the cases put it would be found that a particular crime was charged, authorized by the facts sworn to by the prosecutor, and, although the indictment was defective in one case and the court had no jurisdiction in the other, a prosecution was carried on, authorized by the facts charged by the prosecutor; and the court said, further, that the cases which had been cited in support of the claim or proposition that an action could be maintained for a malicious prosecution, when the warrant charged a different offence from that alleged in the information upon oath on which it was issued, were all cases in which "the information given charged a particular crime and that the subsequent proceedings were in accordance with the information upon which they were had."

It is also said by the learned justice who delivered the opinion of the General Term, that "in our own court it has been held that this action would lie against a party who has falsely and maliciously prosecuted another, although the court in which the action was brought was utterly destitute of jurisdiction in the matter, and the case of Morris v. Scott (21 Wend., 281) is cited to support the statement.

It will be seen that it is there assumed that the defendant was the party who prosecuted the plaintiff, and, upon that assumption, the action was held to be maintainable, and the material and controlling fact in the case at bar, that the defendant herein was not the party who could under the facts be considered as the prosecutor, is entirely ignored or overlooked. *Page 398 It appears by a reference to the statement of that case, as reported, that the plaintiff Morris brought an action on the case against the defendant Scott for malicious prosecution, having been arrested on a warrant issued by a magistrate on the complaint of Scott, maliciously made and without probable cause, charging Morris with aiding and assisting in the removal of the property of a third person for the purpose of defrauding the creditors of such person, for which he was brought before the magistrate and subsequently tried by a Court of Special Sessions, by which court he was acquitted and discharged. The defendant Scott pleaded not guilty, and upon proof being offered, on the trial of the issue, of the facts above stated, the defendant Scott objected to any proof being received for the want of the averments in the declaration that either the justice to whom the complaint was made, or the Court of Special Sessions, before whom the plaintiff was tried, had jurisdiction in the matter. The objection was sustained by the Court of Common Pleas, in which the action was brought, and the plaintiff was nonsuited. He sued out a writ of error from the Supreme Court, by whom the judgment of nonsuit was reversed. COWEN, J., giving the opinion of the court, said that a party who pursues a man by arrest in a court destitute of jurisdiction may be sued in trespass for false imprisonment, but that the authorities taken together gave a decided countenance to an action on the case, though there might be a total want of jurisdiction, provided the malice andfalsehood in causing the arrest be put forward as thegravamen, and the arrest or other act of trespass be claimed as the consequence. He then closed the opinion with the following remarks, viz.: "This case, therefore, as it stood at the common law, seems properly set down by Mr. Chitty as presenting a right to elect between case and trespass. (1 Chit. Pl., 127 [Phila. ed. of 1828].) But be that as it may, a clear right of election arises under the statute. (2 R.S., 456 [2d ed.], § 16.) By that section case may now be brought for almost any trespass affecting the person or personal property. Conceding, therefore, that the declaration failed to show jurisdiction, *Page 399 the evidence offered should have been received." It will be seen by this reference to the facts and circumstances of that case and the opinion of the learned judge that it was not claimed, or in any manner suggested, that the facts stated by Scott to the magistrate did not constitute a criminal offence, for which Morris could have been properly and legally arrested on a warrant issued on his complaint by the magistrate, if he had had jurisdiction; but it was substantially conceded by the declaration that the charge made, if true, was a crime, and thegravamen of the action was that the defendant had failed to substantiate the criminal offence charged, and that his complaint made was malicious and without probable cause, and the point decided was that an action on the case would, on such facts, lie against the complainant, although the magistrate had no jurisdiction of the offence. The case at bar was radically different from that: 1. Because the Court of Oyer and Terminer, in which the indictment against the plaintiff was found, was a court of general criminal jurisdiction, and could, therefore, lawfully indict him if the facts stated in the testimony given before that body by the defendant constituted a criminal offence; and, 2. Because it appears that the facts so stated did not impute or charge such an offence; and, therefore, whether the evidence so given was true or not, or whether it was dictated by malice and without any probable cause or not, the action of the grand jury in finding an indictment thereon in the exercise of unquestioned jurisdiction over every criminal offence was the result of their erroneous construction of its effect, over which he had no control, and for which error he is not responsible.

There is a class of cases holding that an action for malicious prosecution will lie against a party who, on a statement of facts before a justice of the peace or a court having no jurisdiction of the subject-matter, erroneously issues unauthorized process purporting to be founded or based on the facts so stated, but those decisions are placed on the ground that the whole proceedings were coram non judice, and that all of the participants therein were wrong-doers. *Page 400 There is also another class of cases in which parties have been held liable in such an action where the facts stated by him on a complaint before a grand jury, were such as to constitute a criminal offence, but were so defectively alleged in the indictment found thereon, as to prevent a conviction for that reason. Such are the cases of Chambers v. Robinson (1 Strange, 691); Wicks v. Fentham (4 T.R., 247); Pippet v.Hearn (5 B. Ald., 634), and others cited or referred to therein. There are also some cases, holding that if a complainant goes before a magistrate asking a criminal warrant, or before a grand jury for the purpose of procuring an indictment against another on a representation of facts, which do not amount to a crime, he is nevertheless responsible for the loss and damage resulting from such complaint, on the ground that he is considered as the party instigating or procuring the warrant or indictment. Among those is that of Anderson v. Buchanan, in Wright's Nisi Prius (Ohio), 725.

All of those cases are essentially different from that under consideration, in this material fact, that the defendant herein presented the facts, before they were testified to by him before the grand jury, to the district attorney of the proper county, for his determination and decision whether they constituted a criminal offence. He was advised by that officer that they did, and upon that advice being given, the matter was thereafter taken charge of by the district attorney, and the defendant subsequently went before the grand jury as a witness, on being subpœnaed by that officer, and thereupon gave his testimony as such witness, which, with other evidence given, resulted in the finding of the indictment. That finding was not the legitimate or proper result or consequence from the defendant's statement, but from a mistake of the district attorney and the grand jury, in deciding that the facts stated constituted a crime, and indictable offence. Hence the material element of being theprosecutor of the indictment, to charge the defendant with liability for the consequences of that indictment to the plaintiff, was wanting. It therefore became immaterial whether the testimony was true or false, for in either case the facts *Page 401 thereby established, not constituting a criminal offence, could not make him properly chargeable for the mistake and erroneous judgment of the grand jury, who acted independent of any control by him and of any request or solicitation from him to have the defendant indicted, or for the subsequent arrest under it, on a warrant issued by the district attorney, or by the mandate of the court over which he had no control, and in which he did not in any manner participate; nor, in view of the fact that the defendant was not the prosecutor of the plaintiff for the offence charged, is it of any importance whether his conduct was dictated by malice or not?

I will add that the opinion given by ANDREWS, J., in the case of Farnam v. Feeley (56 N.Y., 451), recognizes the distinction between the case of a party instigating a criminal prosecution by active agency and procurement, and one where he did not counsel, cause, or direct it.

My conclusion, therefore, is that the judgment appealed from is erroneous and should be reversed, and that a new trial should be ordered, costs to abide the event.