The defendant was permitted to act on appearances, and if they were such as to furnish reasonable grounds of suspicion, supported by circumstances to warrant the belief of a cautiously prudent man that the plaintiff was guilty of the offense charged, he was justified in causing his arrest, although the plaintiff was innocent of the charge. The question whether or not there was any evidence tending to support the allegation of want of probable cause was for the court; and, if there was not, the complaint was properly dismissed, but if there was any evidence or inference derivable from it, which would justify the conclusion of want of probable cause, the question was one of fact for the jury. (Masten v. Deyo, 2 Wend. 424; Foshay v.Ferguson, 2 Denio, 617; Bulkeley v. Keteltas, 6 N.Y. 384;Besson v. Southard, 10 id. 236; Carl v. Ayers, 53 id. 14;Heyne v. Blair, 62 id. 19; Fagnan v. Knox, 66 id. 525.)
The offense with which the plaintiff was charged was within the statute which provides that "a person who willfully severs from the freehold of another, or of the people of the state, any produce thereof, or anything attached thereto, is punishable," etc. (Penal Code, § 640, subd. 3.) The term "willfully" is not defined by the statute. The definition given to it by section 718 in the original act (Laws 1881, chap. 676) was *Page 349 eliminated by amendment in 1882. Its meaning is not an arbitrary one, applicable alike in all its relations, but its import is dependent somewhat upon its connection, by which the purpose of its use is to be ascertained. This provision of the Penal Code was intended to take the place of that of the prior statute, which was that every person who should willfully commit any trespass by "maliciously severing from the freehold any produce thereof, or anything attached thereto" should be guilty of a misdemeanor, etc. (2 R.S. 693, § 15.) The Code, as amended, I think, was not intended to materially modify that provision of the Revised Statutes. The word "willfully" is common in criminal law, and there its import is extended beyond the plain meaning of intentionally or designedly, and embraces within it a certain degree of malice or purpose to do injury. And thus is involved in the statutory offense the element of criminal intent. (Kilpatrick v. People, 5 Denio, 278, 281; Wait v. Green, 5 Park. 185; Commonwealth v. Williams, 110 Mass. 401;Commonwealth v. Kneeland, 20 Pick. 206; 1 Bishop's Crim. Law, § 421 [262]).
The conclusion was, therefore, warranted that the plaintiff was guilty of no crime in what he did, but that he was acting in good faith to make the work, which he had undertaken to perform, conform to the requirement of his contract. It is true that he previously assumed to have completed his contract, but, since the closet was not such as by the specifications he had agreed to put in, he had entered upon the premises, and was seeking to make the change in that respect, when he was arrested by the direction of the defendant.
The plaintiff's relation to the transaction was different than it would have been if he had not had the contract to do the plumbing. It was essential to his claim for service that he perform the work substantially as he had agreed to do it. And the fact that he had before announced its completion, did not deny to him the right to seek the opportunity to correct any error he had made in the work, if it could be done without prejudice to the other party or owner of the property. The fact, however, that he had entered by forcible means to *Page 350 do it was a circumstance, unexplained, which enabled the defendant to believe that he was unlawfully there engaged in a criminal trespass within the statute. But the question is, whether a reasonably prudent or cautions man, under the circumstances, would have observed or been advised of the actual purpose of the work the plaintiff was engaged in at the time in question, or whether there was any evidence in support of that fact. For if the defendant was, at the time, advised that the plaintiff was not engaged in a criminal act, although there were appearances indicating it, he was not justified in causing the arrest and prosecution of the plaintiff. (Fagnan v. Knox,66 N.Y. 525.)
And if, from what he observed and learned upon the occasion, he was not justified in entertaining the honest belief that the plaintiff was committing any crime, his prosecution was without probable cause. (2 Greenl. on Ev. § 455; Shafer v. Loucks, 58 Barb. 426, and cases there cited; Merriam v. Mitchell, 13 Me. 439; 29 Am. Dec. 514; Grinnell v. Stewart, 32 Barb. 544.)
I am inclined to think there was evidence sufficient to require the submission of that question to the jury. The defendant was a party to the contract with the plaintiff. And when he went to the stable on that occasion, and before the arrest of the plaintiff, his attention was called to the closet apparatus, which the plaintiff designed to substitute for the one before put in. The inference was permitted, from all that may have been or was seen and what occurred, that the defendant was advised of or understood the purpose for which the plaintiff had it there, and the use he was proceeding to make of it in the work. And that, instead of willfully severing anything from the freehold, he was proceeding to change the apparatus referred to. The facts are so fully referred to in the opinions of Judges POTTER and HAIGHT that it is unnecessary to make any further reference to them here.
I think a new trial should be granted.
FOLLETT, Ch. J., VANN and PARKER, JJ., concur with POTTER, J.; HAIGHT, BROWN and BRADLEY, JJ., dissenting.
Judgment affirmed. *Page 351