McCarthy v. Weir

Jenks, J.:

The action is. for -false 'imprisonment and malicious prosecution upon a criminal charge of grand larceny. J At the close of the plain? tiff’s case the court, dismissed his cause of action for false, imprison- ' ment, but finally submitted that for malicious prosecution to the jury, who found for the plaintiff.

The learned trial court cjiarged the jury, “ The basis of an action of this-kind is malice,”-and after defining malice, it continued: “The law says that "where-a prosecution such as. this has been initiated -by a citizen-and it termipates favorably to the person proceeded against, it may be presumed that the prosecuting .citizen had not probable cause to believe that such-defendant was guilty of the offense, and it will 'imply malice. So that the cause is ordinarily made out. when there has been a termination of the criminal prosecution favorable to the defendant, the implication-of malice arising ásmaÚer oflawA 'The learned court afterwards‘explained and qualified its charge relative to probable.cause, but although the charge as to malice was specifically -presented to 'its attention. I cannot find that, it'receded from the instruction that "the law implies malice from the want, of probable cause. The defendant protected himself by his exceptions,. • "

I think that the judgment must be reversed for this error, .inasmuch as the jury virtually were instructed that if it found- want of probable cause, malice followed on its heel by implication of law. The law does not imply malice from a want of probable cause. It may be inferred therefrom by the jury. ( Vanderbilt v. Mathis, 5 Duer, 304 ; Wilder v. Holden, 24 Pick. 8 ; Stewart v. Sonneborn, 98 U. S. 193 ; 2 Greenl. on Ev. [15th ed.] § 453, and authorities cited.) In Stewart v. Sonneborn (supra) the court, per Strong, J., say: “ And the existence of malice 'is always a question exclusively for the jury. It must be found by them, or the action cannot be sustained. Hence it must always be submitted- to them to find whether it existed. The court has no right to find it, nor to instruct the jury that they may return a verdict for the plaintiff without it. Even the inference of malice from the want of- probable cause is one which the jury alo necean draw. (Wheeler v. Nesbit et al., 24 How. 545* ; Newell v. Downs, 8 Blackf. [Ind.] 523 ; Johnson v. Chambers, 10 Ired. [N. C.] L. 287 ; Voorhees v. Leonard, 1 N. Y. Sup. Ct. 148† ; Schofield v. Ferrers, 47 Pa. St. 194.)”

The judgment and order are reversed, and a new trial is granted, with costs to abide the event.

Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment and ordey reversed and new trial granted, costs to abide the event.

* 24 How. [U. S.] 545.— [Rep. † Van Voorhes v. Leonard, 1 T. & C. 148.— [Rep.