898
FEDERAL'iREPORTER; :vol.
41.
fit of the party rightfully entitled; much less will it do so vain a thing as to destroy one deed in order'that the same grantee may obtain another conveyance of the same title from the same grantor. The patent which the plaintiftij)'Wouldhave cancElled\gave them the land they claim to own. If this court had jurisdiction of this case, it could give them, np more; the.-efore the suit is useless. Therfl'is'n() equity in the bill, for that reason» as well as for want of jurisdiouOD.lsustain
..
'
,
'.",f:,;
MILLER ". CHICAGO,
M.
&
ST.
P. Ri.do. 11,18\10.)
(Circuit Court, W. D. Mi8,O'UJr!.,
w. D. oj
1.
In a suit against a railway company for malicious prosecution for arson, a delDuP'$rto,plailltitr's evidence will where it, appearll that a depot of such company wali burned by an incendiai"l; (hat the company's IligeI1t, upon inves, ,tigatiOtlj: was informed by several persODS of, circumstaDces, a strong , c1\ain ()f evidence againsttJ:!,e I11aip,titrj such agent before the company's local attorney, wb(), out 01 abundant' caution, placed, t,hem, before the County pr()l!Ccutdr j and 'that the latter examined all the persons concerned in furnishing the, informp.tion, and,. then advised the prosecution of ,pI,l\intitr, i.n which advice the company's attorlieyconcurred; , ' "'" In prosecutlon;:a:primafaciecase of good motive and of. probable cause is made out when it appear, that ,the pr0l!ecuting witness took the advice, of and also placed all thefliOts before the county attorney, who thereupon adv,illed theprQseoution." . SAME-COMMITM:gNT BY MA,l,1'JSTRA.'I,'B. , ' ,·· ", " The fact a magistrate, after a hearing, committed the &cous,ed, makes out a : prima facie case of probable cause for instituting the prosecution. . Leaving ()ut the pf an acoused person by a ma.llilltrat.:l lifter a hearing, the fact that the grand juryignored.the bill against him'makes out II prLmit fa..ew cas.e ()f want of probable cause for instituting the proSecution. '
JrrALlarous PROSECUTION-PROBABLE CAUSE-ADVIOE
"SAm:. '
a. &.
·Si\.ME-GRAND J;uRY.
5.
$Aim-BURDEN OF PROOPJ
pro,s,ecution, neutralize eliO,h.' other; and the p,l,Qintiff, to. sustain ,biS, oalle, must produce other evidence of ;m,alioe, and of want of probable for inlltituting the , prosecution.
graM jury hall then ignored the bUltbelle two facts, upon a SUlt for malicious
W\len a magiatl'l,lte, a,f,tera hearing,has committed au &coused Jlerson,and tM'
6.
:' ,Where a criminal proseoution'was based largeiy: upon' infol'Qlation given by one ,person, but such informati()ll was corroq9rated by indepeI\dentcircuQlstancee, and' , also, as to part thereof, by other persons; it not incumbent ullon the prosecutIng witnesll, a stranger in the neighborliood,'to'make inquiriell as tqthe reputation , of such person fQr veracity. . 'I.' ,,' It Is not "incunibent upon:'a person .abotitto Institute II crimln'alprosecutton to alMIIl. " .' ,' ' '" '. '. JO to of the Inquire of him'whether he remai,n!ld , at home on the night the crime was committed, and whether his twO daughten ,would testify to that·etreot.: ;' " , " : ' ',. a,·SJ.JIE;; , ·I
SAME-'EvIDENOll.
.
,', Rev. St. Mo. f 2;1.00; provides, a,Qlong. qther thin,.. .tha,t wl:\en jury ignores a bill' 'against a' );lerson committed by a ma.g1strate, the COlltS 8hiill be' paid· by .juryshaUoertify that there was probable cause for' tbe prosec.1itiOI1·. the record only showlI that the bill. wall Ignored, ' lind judement was 8'literedagamst the IItate for' costll, it, must be presumed, i.n a sqch certl.dcate was made. .,
'.
' . ,';
"
",
MILLER
v.
CHICAGO, M.
&;
ST. P. RY. CO.
9, I'RAOTIOE'-DEMURRERTO E-htiENOE.
, Tnefeis no qifference ,between the practice of state andteqeml'conrlsas to tak, ing from the jury. ,':CAe rule in both is that it will, be donewbenthe, facts Bvpear so strongly upon one' side that, if the jury returned a verdict for tho other, 'the'OoUrt Would feel constrained'to set it aside. ," : ' ,
Action for Damages. This suit was brought by T. H. B. Miller against the, Chicago, Milwaukee& St. Paul Railway Company for maliciously lmusing'hisarrestand imprisonment upon Robarge of arson in burning its dep6tat Niantic, Livingston county, Mei. ,Plaintiff was tried before a ccimmittingmagistrate"and held to the grand jury. the bill, w1:lereupon this suit was instituted. At the trial, the question under investigation being whether the defendant's agents acted without probable cause in instituting the prosecution, it wg,g:clairned on benalf of the plaintiff that otte Ket;medy, a section hand,upon whose inforby others, the prosecution wasbegU1;l, was a. mation, jjupported in man 9flj'aq. reputation veracity, and that defendant's agents were negligent in not ascertaining that fact and acting accordingly. Upon this point the following proceedings werellad: "Mr. Waters, [for plaintiff.]! propose, with the permission of the court, to read the testimony upon ,the preliminary examination, the charactel' of this man whom they relied on for their information. i'he Court. I examined that question last evening, Colonel, and I am sati'sfled that the e.vidence of those witnesses is incompetent until you establish a foundation showing that tilis party had some reason to believe that he was not a man of veracity.' The rule in that respect is that the law presumes that every citizen has a good:chal'acter, that he lives in the peace of the state, and that heisa man of trutl1and veracity, until the contrary is made to appear. In dealing With our we have the right to assume that men tell the truth, and that what they state is true without instituting an inqUiry in the neighborhood to ascertain whethertiley are under tongue of good repute. Of course, if a man has information, and don't show diligence in of 'physical facts, sometimes he is held liable for what he might have ascertained. But in this particular the presumption is in favor of the good name and reputation of every citizen until the contrary appears; and, until you can show that the prosecution in this case had possession of facts and circumstances which should have put them upon inquiry as to the character of this man, I cannot admit that evidence. Mr. WaterH. The ground on which I offered it was this; your honor: The prosecutor swears that he acted upon the information that he obtained from two of the defendant's elDployes,-Watson, the detective; Kennedy, the section plan; and so much more reliance, according to his own statement, did he place upon Kennedy than upon the detective, that he would not act until he had talked with the section man, who then came in and gave him the information·. Now. there are two of the defendant's employes, not strangers, carrying information to the prosecuting attorney. It is 'not a charge on the prosecuting attorney that he ought to have noticed, but the defendant or its servants who Were engaged in this prosecution; and he insisted upon it, and had that man to come down there, all!! ;tHell' upon information got from both employes, he advised this prosecution. Now, if tllat, employe who is furnishing the evidence for the state, upon which the state was giving its opinion, was a man of n.otoriously bad character in the neighborhood, it occurs to me that it is proper to show that. By the Oourt. Here is a witness, the prosecutor, who did not live in
900
FEDERAL REPORTER,
vol. 41.
that neighborhood at all, and he is not supposed to know what is common fame init; and if a party Is to besubjectfld to an action for malicious prosecutionupon the ground that a person who lives in the neighborhood comes to him and tells him certain facts, as this witness does, and it afterwards turns out that they can get a lot of witnesses to impeach the vel'acity of that witness in the methods ordinarily known, and that the man was not under the tongue of good repute, why, no man would be safe in illstitutin,:t a prosecution of thaf sort; I don't think that evidence is Mmissiblein any state of the Calile, beQause this case is to be tried as the facts then appeared to before him. the party instituting. the prosecution, from the best lights I don't think the law will justify me in going to the extent of. saying that he should institute an inquiry in that neighborhood to ascertain whether anybody would comeln and swear .that that man was not 8 reputable:citizpn, and not worthy of credibility. I am not able to find any case or any principle that goes to that extent, and I gave the case considerable examhiation last night. Theiother rule, that a man haS to give to his attorney the information that he has, Qr wllich he might have known by the exercise of ordinary diligence, runs in a.different direction from this; and I do not think any case can be found, .Ol'lmy principle of law, that would carry the rule to the extent that is sou.ghtin this case; and, until more is developed, I shall have to exclude that evidence... At the conclusion of thElplaintifl"s evidence,which is sufficiently set out in theopirdon, the defendant demurred thereto. L. H. Waters and R. A. Debolt. for plaintiff. Fe:rry Hagerrnan , for defendant· ... PHILll'St:J., (oraUy.) The question to be decided here arises on Ill. i to the evidence, or an instruction asked on the part of the defendl,lnt to the effect that, notwithstanding the evidence introduced on the part 'of the plaintiff, tpe jury should find the issues for the defendant. Such. a deIlltlrrer, of cour$etadniitsthe truth of the facts as established by tbEl evidence o:q the partQf tne p]aintiff, and such inference as a jury l;Xlightbe ",arranted in making therefrom within the b?unds of reason. So this demurrer is to .be cQl)sidered upon that theory of the evidence. The law in respect to actions for malicious prosecution imposes upon the plaintiff the burden of proof. It devolves upon himto prove. in the first instance,thatthere wasaprosecutiotl instituted and inaugurated by the defehda:nt against him for'som.e offetlse... It devo]ves upon the plaintiff, in t1:i,e next place, to· prove that tpe charge made or. preferred by the prosecutor was false; next, that the defendant was instigated by malice against the plaintiff; and next"that he made the ch,arge without reasonable or probable cause to believe the plaintiff guilty. And, unleAs all these facts be proved to the satis.faction of the jury, they should find for the defendant. r,his burden the plaintiff has assume'd in this case; and the question is, }las he presented a,primafacie case that would entitle him to take theopinof a Jury? .In the first place, the pleading alleges, and the plaintiff's evidence shows, that, upon an investigation had and' a· trial conducted beforethe magistrare,the magistrate found that'anoffense had been mitted, ltlierewas probable cause to .believethe plaintiff here, party. The petitiop furthElr avers the fact that Miller
MILLER' fl. CHICAGO, M. & ST. P. RY. CO.
901
the grand jury, upon a subsequent investigation, failed to find a true bill against the defendant. They ignored the bill, and thereupon the defendant, Miller, in that proceeding was discharged. Now, thefirstquestionwhich presents itself for determination is, what is the legal effect, and what is the legal conclusion to he drawn from, these two adverse actions of the two judicial bodies? The very matter under consideration before the trial magistrate is the question of the existence of probable cause. That is the faot upon which he passes. He has no jurisdiction to determiue the final guilt of the party; but the onhe investigation is to determine, in the first place, whether an offense has been committed against the peace and dignity of the state; and second, who is the guilty party, or whether there is probable cause to believe that the party charged is the offender. The magistrate has ample jurisdiction for this purpose. He proceeds according to the usages and forms which have obtained in courts of justice for the administration oflaw. Evidence is heard, both for the prosecution and for the defense. The state is represented by the county i;lttorney, and the defendant is entitled therein to demand his constitutional privilege of being heard by counsel, and to have the process of the court for witnesses, and a full trial and inquiry into the whole facts of the case in determining the existence or non-existence of the fact of probable cause. Of course, it has all the dignity and solemnity ofa judicial proceeding. The books all say that, where the committing magistrate finds there is no probable cause to believe the defendant is the guilty party, this conclusion and judgment of the magistrate present a case of most persuasive evidence that the prosecution is without probable cause; and counsel for plaintifI', in such case" perhaps is right in saying t1,1at, in the trial of an action for malicious prosecution, plaintiff might, after the usual preliminary proofs and the identification of the partiE's, etc., safely rest upon the judgment of the magistrate acquitting the defendant of the charge. It thereby presents a prima facie case, and perhaps the burden of proof,would then upon the defendant to show the existencl:l of probable cause, and the absence of malicious intent. But this is not the case here. The magistrate found there was probable cause; and, if acquittal is most persuasive evidenCe of the absence of probable cause, the counterpart of the proposition ought to obtain,-that committal makes out a case for the defendant; that there was probable cause for the institution of the proceeding. And if there was probable cause, no matter what the motive or intent of the party may have been in instituting the proceed..; ing, the question of malice plays no part. Now, what is the effect of the subsequent action of the grand jury in \gnoring the bill upon this prior adjudication of the magistrate? The books show, and theadjudicated C'a8es say, that, independent of the action of the magistrate,where there has, perhaps, been no action by the magistrate at action of the grand jury in ignoring the bill also presents a prima facie case for the plaintiff in such pr08ecution. If that be 80, why, then, we have presented here two opposing prima facie cases of a persuasive character,-one predicated on the finding of the magistrate, in favor ofthe
,,'" ;
REPORTER,:VOl.
4.1.
defendant in this 'case) !aOdone predicated upon the action olthe grand jnry in ignoring tbebill, in favor of the pmiiiltiff here. Counsel for plaintiff;inthe trialofthis cause, and in the argument on the dem urrer to the ie:vid,encar concedes that it would not havelbeen sate, under that state ofthe ,proofs, for him tohavel'ested his case upon'the action of the grand jury; togo m,the jury upon.the idea of having made out a prima facie case by hltroducing in evidl'lnce·,the. action of the grandj ury,after the evidence was before thejury of the action of the justice of the peace, the committing magclstrate. Leaving the case, then, in that attitud e alone, without discussing question of the effect of the' ignoring of the bill by the grand jury, here it'devolved upon the plaintiff', upon this state of the proof, to go further, in order to,.make out a pritnafacie case before the jury. The prima facie in.. ,stances, tben, were, I think, evenly bll1anced upon that aspect of the case; and it devolved upon him to go further, and show, in fact, to thejury,that tbecharge was false,orthat the party was actuated by malice inpi-eferring, and bad no reason or probable grounds for preferring, this charge. The effect of this action oLthe grand jury under our statute, while itil!l not, perhaps; material to the conclusion the court may reach ,nthia discussion, be adverted to and considered. Section 2H>O of the Revised Statutes of Missouri of 1879 provides: . "!fa person', charged With an offehse punishable with death or ment in the.. penitentiary alone, shall be discharged by the officer taking his examination,. ori( lle be or committed for such offense, and no indictment 1)e f\>un,d against pill), the costs shall be paid ,by the prosecutor or person on whose oath 'the'J?rosecution iJ;l$tituted, and j lIdgment shall be rendered therefor, as prOVIded in tile two next preceding sections. unless the otlicertaking the examination, or the grand jury before which the same Is investigated,shall 'certify that there wasproJ:)able cause for the prosecution. in whicb event :the costs Eihall be paid by the state." The record of had the grand jury of the circuit court the grandjtiry, on the 25th of July, returned into court the foUowing presentment, to-wit: ,· Missr,urtvs. H. B. Mille1'. ",," "The grand jury find no bill. A. MOVAY, Foreman·. "Whereup\>n .it.is and adjUdged llythe court that the defendant 8n'dtbat he have and recover of plaintiff. his costs here. herein be in expended." "7From which it appears that the circuit court, into wbicb that indictment wasrElturned, proceeded to render judgment against the state for The record before me" which isa transcript of the judgment, and not more,underthe qertificate of the clerk, simply shows that the cO,urt, upon.tbe return ·ofthe grand jury, "No bill found," proceeded to enter up,,judgment against the state for costs. It is contended, byihe leal'n:ed. couDsel for the plaintiff in this'case, that the .courtWI1s;}onlyalil,tborized to do that in the event the grand jury wade a that there was probable cause for the prosecution. In that instal;l,ce;thecourt is authorized to render judgment against the statefor the costs. It has done so in this case. The contention of
CHICAGO,.M. & ST. P. RY. CO.
903
counsel, however, is that the court had no to enter that judgment in the absence of the necessary or prerequisite certificate'of the grand'jury certifying that there waspi'obable cause for .the prosecution. But the question presents 'itself, on that aspect of the case, what is the, effect of the action of the court in rendering this judgment? There is nothing here before the court to show .that this is a,{ull and complete transcript of all the proceedings had in the case, and of all the papers on file. The grand j)1ry are"required to make this certificate,-not necessarily to be made upon the indictmentitself; not. necE;'ssarily to be. incorporatedin their finding on the bill; but they could make the ceI1ificate upon a separate. piece of paper, or in any form. The question is, what is the conclusion to be drawn in a collateral proceeding from·this action of the circuit in thus making the judgrpent, when it is Il,ot authorized to render it eXCElptuptm the certificate o'ftijegrand jury that there was probable It is a fundamental prih'ciple that every in-, tendmell.t must be made in. favor of the judgment rendered by a court of generatNrisdictionjwhile in courts of the facts, whether they exist in pais or by record, which confer'jurisdiction upon them, and authorize them to proceed, must appear affirmatively q,p()D the record. But when a court of general jurisdiction, having jurisdiction of the proceeds to judgment, every intendment must be indUlged in favor of the judgment,-that all the prerequisite facts to authorize the court 'to take jurisdiction and render the judgment were found by the court to exist. Reference to a few authorities on this subject will indicate what is in the mind ofthe court in this connection. In the case of State v; Br011J'Yi, 75 Mo. 317,chie! Justic,e SHERWOOD, in passing on a question in a criminal case, says: ' "It is true that section 1909 of the General Statutes provides that.the court, , with the consent of the prosecuting attorney and the defendant, ... ... '" may permit the jury to lleparate, ... ... ... except in capital cases; , but that statute nowhere provides that the record shall recite the fact of consent given. In the ahsence, then. of any objection appearing to the separation of thejul'y, the presumption' will be that the necessary consent was given. Such presumptions al waysattend the acts and doings of courts of general jurisdiction." In State ,v. Burm, 85 Mo. 47, it is said: "Every presumption attends the acts and doings of a court of general jurisdictioo;and a party who asserts that error has been committed must prove it." In Gates v. 89 Mo. 13, SHERWOOD, J., says, on page 18.:' "It is one of the fundamentals of the law that, where the record oia court of general jurisdiction shows that it assumed to exerol$e jurisdiction over persons 01' subject-matter, that in the absence or silence of the record :\s to any fact showing the acquisition of jurisdiction. or how it was acqnired, that th'en jurisdiction is to be presumed; for the rule ill that 'nothing shall be intended to be out of the jurisdiction of a superior court, but which specially appears to be so.'" So, agaiJ;l, the courtsay,.in f:khad v. Sharp, 95 Mp., 573,;076" 8 SO)
w. Rep. 549:
904
FEDERAL l'tEPORTER,
I
"Nothingappearlrigiil tIle record to' show that the land was. not in that coonty, and the cirO(lit· cOllrt ,being a c9urt of general jurisdict,ion, it will be to have its jurisdiction rightfully, and ·nothing shall be intended.to 1:)e put out of the jurisdiction of a superior court 1:)ut which specially appears to be so. '" . , i .
So, again, in Oity oj St.'LouUJ v. Lanigan, 97 Mo. 175,180,10 S. Rep. '475; SHERwooD,'J.,says:
w.
"'NotHing should be intended to be out. of the jurisdiction of a superior court':btit that whICh spMially appears to be so.' Sch,adv.Sharp. supra. Suchdotitts proceed by right, and not by wrong; and the presumption that they do: so will attend ,their acts and doings, even in coming up to this couI;t ,on, or appeal;"
·
So presumt>tion ought to be, nothing to the contrary appearing, tha,tthe right to renderthe judgment; and, its right being upon the c,ertificate of the jury that there was probable cal;isEi, thej>resumption shot/ld be indulged, in favor of the judgment, toat the 'COUl:t' found the precedent act to exist. But waiving that, a pointnptnecesl;\ary t9 be decided in this case, it has been held una statute E;limilar to ours, though 'Yithout this provision respeqting the certificate ofthe grand jury on the question of costs, that the greater effect is' to'Qe given to the action of the committing magistrate in committingtheplaintiff. In the case ()f Ganea v. Railr()ad Co., reported in 51 Oal.141, the court says: II It is well settlElli tllat, in order to Plain,tain an actiOn of this character, want of pr9\>able,cause mnat. be affirmatively by plaintiff. It is conceded that. when the plaintiff proved. that he had been held to answer by the examining magistrate; he sofarfoith establishes, p1'ima facie, the eXiEitenceof probable causa:for the prosecution of which he now complains. We have been unable to discover any fact{)rcircumstance'in evidence which could be fairly said to overcome. in this respect. the effegt of the orl]er made by the examining magistrate holding the plaintiff hereto answer to the charge. The subsequantignoring of the charge by the grand jury did not have that effect. Under the system of criminal law prevailing in, this state, the deliberations of the grand jury al'e not. as formerly, a mere examination of the of the prosecution., The proceeding before,.the grand jury is. in fact, a preliminary trial. and one in Which the accused may appear by his witnesses, and make his defense, and may himself be sworn and testify in his own behalf. The favorable result of such a trial certainly. affords no evidence of want of pl'olJable cause. The prosecution, in the first instance, does not seem to have been hastily or inconsiderately set on ,foot. It was only after an anxious and carefuf consideration. a deliberate examination ,of all accessible mellDBof information as to the fact of the<alleged perjury, both by the local attorney and local agent of tbe defendant, that it was detel'mined that legal prQCeedings against tbe plaintiff here should. be initiated. There are no circumstance.s indicating that the prosecution originated or was conducted in consequence of any repl'ehensible motives upon the part of the defendant." So we mar say, for the purposes of this case, in deference to the apparent inolinationof the judicial mind ill the state jurisdiction, that the plaintiff has not made out a prima jacie case here by showing that the
CHICAGO, M. & ST. P. RY.
co.
!JOu
bill was ignored by the grand jury, in view of the liwt of the precedent action of the committing magistrate in finding that there was probable cause; in other words, that those two. prima facie inferences counterbalance each other. Then it devolved upon the plaintiff to go further, and show, not only that this charge was false in fact, but that at the time it was instituted by the prosecutor there was no reasonable ground to suppose that the .defendant was guilty. Judge HOUGH, in the case ofSha1>pe v. Johnston, 76 Mo. 670, quotes with approbation the definition of the term "probable cause" as given in Vansickle v. Brown, 68 Mo. 635,as foHows: "!n()ur opinion. that reasonable and probable cause which will relieve.1l. prQsecutor from liability is a belief by him in the guilt of the accused, uponcircumst,ances sufficiently strong 19 induce such belief in the mind of " ·reasonable and cautions man." This cause is to be determined here with a view to the facts andobcumstanceaas they then appeared to the mind orthe prosecutor,.auQ 'l'lponthe theory as to whether they were of such character as would have prdduceda belief in the mind of a reasonable. and cautious persC)u that the defendant was probably guilty. .Of course, if the plaintiff would proceed in this case, and show that, notwithstanding there may have been on .the surface-on the appearance-of these facta,su,fficient to have persuaded the mind of a reasonably ca:utious manoLtbe .probable guilt of the defendant, yet that theprosecntor in' factkoe:w MiHerwasaanoceot, or that;he was in possession of such facts.as woulli have led ,to a discovery of that fact,-that is, by' the exercise of ordinary 'care and diligence he couldbave discovered the fact of innoGencEl, which was about, patent and .obviousto him,-.then ,plaintiff might have made out a .case. It is not sufficient to show that the PITOS&cutor was actuated by malice, unless the proof shows the additional fact that there was DO probable cause, and that the circumstances under which he acted were such that, in the absence of proof of malice,might be inferred. Now, as a matter of coufse,it will be ,understood that in passing on. this demurrer the court can only pass upon the facts which are undisputed. Disputed facts, controverted facts, facts from which different minds might draw different conclusions, are always for the jury. They belong to the jury, and not to the court. But, where the main facts in a case are undisputed and are concedeo, it becomes a question of law, for the court to determine, what. is the result from these ·facts thus admitted. The evidence in this case shows, without any controversy, that on the night of the 8th of October, 1887, the depot of the defendant ,was burned at a station known as" Niantic." Property shown by the .evidence to be worth from two to three thousand dollars was destroyed in a 'night. That it .was the act of an incendiary the evidence in the case quite clearly proves. There were attendant Circumstances on that fire, and facts discovered there immediately succeeding it, such as to leave no ground of doubUn the mind of a reasonable person that its destruction w8I!Iwanton and intentional. The. defendant, appeared shortly thereafter .: on the
906
FEDERAL REPORTERj"vol.
ground, thrQugl}1itS i :Mr: :ns'was its right and its duty to do"notoDly preservation of its own property, but iothe' pubUcl'itIterest;'.as,a cl,mservaror'of the public peaoe, to bring the off'ender'againS1J 1r tbepeace and dignity of the state at large to justie!).:. It-instituted asoertain, if possible, who it was committed this aot.' The faots discovered by Watsonwere, in the first place, the .evidehoe of the inoondiarisrri. The next was the statements made to him by the:wihlesses who :appeared upon 'the' ground 'early the next morn·i-ng that theydis,(lovereda.' track coming down the railroad from the north in the direction of this depot; that a kerosene lamp had been taken ,from a switch..post and, carried to the platform of the depot; that coal'oH, or was found there iIi a jug; and then that tllis!same'ttack, which bitd:thus COrnEl down the raihoad tiesdr the railroad right of way, went back. These parti'es, three:innlirilber, traced ·these, foOt-sti'lpw8on1e:distance up the railroad track; 'and,within a quarter lmhalf a mile] or: 'so of the depot) theyd,iscoverlld,aocording to their !statements and; and ',as'c,they' afterwards i.ted tothe::eduntyiattorney,who iIWVestigated,;the i matter before he 'institlited,1iheW0S'6cutiou, and as theaeiparties:sworeon the tpal, a patch of 'a sol & : (1.1:"0: shoeLor,boot fastened in between the tiesol the pulled, oft' by being between the ties,or by the sueflion',of foot-step, two or three of 'them,; up to in the evidence in thiscaSe'a,g the "Grabsst l)'·':l"hel'etwo of the pal'ties who constituted thisnmnber stopped, and' went no'further;ahd"one of the patties, nalped Keimeny, stated to .,thisprosecuiil1g withess;also to the ctniniyattorney,and also swore to it before.he comnlittirigmagiati'ate, that he traced the foot-steps to the rear door ,oftha drug..atore. TheevidelilCeful'ther'showsthat became judgment'iOfthose intrusted with the investi,ga'tionof this'matter, to ascertain ftom:what shoe or boot this patch:canie, _nd, having traced these' foot-steps, as'claimed by the 'witness Kennedy., "tuthe business house of Miller, the mand<:ennedywas sent there ito see if lhe:eouldfind,theboot or shoe from which'this was taken. The fact was 'furiher broughtto i 'the attention ofthe agent of the railway company ,that,thismQn,'Miller" on the morning the fire, and. perhaps by!9 or 10 ,o'clock'of that ,morning, .when' requested by his neighbor to gd doW"n with him'to the fire,complainedthat his boots leaked, and that 'he needled another pair of boots, and boU'gbt from him that morning a pair of boots, either gum or water-proof. That fact was brought to the attemtion of th'&Jprosecuting wdrtneEis. In addition to that,as it waSs'upIposed'tQ be ;important to know whOse "shoe or whose boot this patch daDleffoIn\ theUlQn Kennedy-was sent to these premises; and,onsearching iin1he rear room of the man MiHer?sdrug-store, an old pair of, boots .,lfoun4 that 'presented the apPElarahoe of having lost part:of ilie :having:rtheappearance of, 'newness and freshness abdht it.' Thllt :boOt'Wa:B1taken:"andthemattel:' waS· tral'red to the shoe-make» who put ;this "patch upon this boot. One shoe.,;maker stated thahhe patch came 'frGm that:boot;:on 'ekamining it; and'tIte shoe-maker who put the patch
CHICAGO, M. &
st.
P. BY. CO.
907
on the boot'stated positively, and hE; aftenfards swore to the fact, Ulat he did it fot Dr. Miller, possibly in the spring hefore; and'the evidence showed' that the boots in question belonged to Dr. Miller. The evidence further-' more showed, by statements of Miller, that he was out that night, or the evening, perhaps, before, and some time during the night. Now, these were the prominent facts and the salient points in the case. They were laid before the local attorney for the railroad company, Judge Broaddus, of Chillicothe, a gentleman of the highest repute, who has occupied judicial position in the state; a man of honor"luid learning, and of high attainment in his profession. Recognizing the delicacy of his position, and from a sense of modesty, he had this party, in the first place, lay these matters before the county attorney. ' He went to the county attorney, and stated these facts in their general substance, and with particularity, without any expression of opinion on his part. He laid all the evidence in his possession at that time before the county attorney. The county attorney-the representative of the state, the conservator of the peace, intrusted with the duty of instituting and conducting such prosecutions, (the man Watson being a nonresident of the state, and astrangertohim)-took the prec8rttionto have thesewitnesses,by whom he was told these fadts Gould be shown; brought before him and examined; and he states that these witnesses detailed the facts and circumstances to, him just as they had been given by the' toan There is no evidence on the part of the' prosecution that the witness Watson misrepresented a single fact tothecounty attorney in" that statement. unless it be in the ,particular as to, the information obtained from the young man Davis. Now, the evidence on the part of the plaintiff here is that this was a matter that transpired the statements made by the prosecuting witness 'Lo the diStrict,attorneyrespecting the man Miller. The idea of proceeding against . anybody else, or including anybody else in the prosecutioo, thaQ the man Miller, seems to have originated altogethet with thecQUBty attorney, and with him as a precautionary measure" . The evidence shows that, in the mind of the prosecuting witness, Miller was the guilty manj sAd Watson's statement to him was entirely respecting the man Miller. Upon inquiry by the prosecuting attorney about Jim Davis and the young man,Dudley, who was the clerk of the defendant, Miller,out ofprecaution, and for fear that the evidence might ultimately tend to sh.ow that they were implicated, and to prevent their becoming alarmed and escaping, the county attorney advised that they also be arrested. A statement was made to him, he says, by Watson, that old man and perhaps Dudley , were out that night with Miller; and that he is not certainas to whether the witness Watson said he got this information from young Davis direct, or whether he learned it in some other way'through him. His impression is that Wat!;on had the' yoong man. ltseetiis to me that this,' coming up as it did, and in connectioIl 'with the otner facts, in no wiseaftected the defense of Miller, or bisaction in · in'thiscatk: It is tmiIrifuaterial fact,and the very' most that could be affirmed:Of it is that it wbuld be a collatetal and Incidental i
908
would dot at all affect tlle prosecution with respect to Miller. Every statement made by the prosecutor, Watson, the county attorney found to be true, so far as the statements of witnesses to Watson were concerned. The witnesses stated the facts to him just as Watson had represented them; and they went upon the stand in the justice's court, and swore to the facts. The facts thus developed and disclosed to the prosecuting attorney were of such a persuasive character as to leave no doubt in his mind that the defendant was and that there was probable cause. Then Judge Broaddus, after the county attorney reached his own conclusion, independent of any act or suggestion of his, also concurred in. the conclusion. So that this party, by the course he took in laying the facts simply as they had come into his possession before the law-officer of the county, the representative of the state, and before the attorney of the railr9,ad company, did manifest any malignant spirit, noql.ny bad disp'oEiition nOf haste, to institute this prosecution upon his own jqdgmenti but left it to the repres\lntative of the state, and to the counsel of the railroad :company itself, who reached the conclusion, ·without any. hesitancy, that the facts justified the prosecution. Now,attach what importancewe mayto.the advice of counsel, the fact remains that the. prosecutor did take the advice of counseJ, and that the p'rpsecutj<lll was Instituted at the instalweof the county attOmey. The p,apers werl;l prepa,red by him, and to by N.o.w, the federal jnrisdictjon, aslaid down in 98U. S. 196, the case of Stewart v. Sonneborn, is; "It was proved that, before they commenced their suit in the circuit court of Baroour: county, ,the defendants were advise.dby an eminent lawyer of AIabama,of twenty-fiveyears' standing in the profession, respecting their legal right to from the plaintiff, that in his opinion the plaintiff was . liable further testified, that the same lawyer advised them in his opinion the plaintiff had reridllred himself liable t? involuntary proceedings by suffering his brother's judgment to go against him by'defaillt,·andby advertisinl{ his .entire stock of goods at and below New YOI'kcost;,It! Was not until after this advice had been given that the petition ill bankruptcy. was pI:epareli and filed. That the facts stated in the point proP<?!led, .if believeQ, by the jury,. were a perfect defense to the action; that they in.law,a probable ·.and, being such, that malice alone, if there was such, was insufficient to entitle the plaintiff to recover,-is, in view decisl0ns;beyond doubt, [citiilgcases.] These cases, and many others that mi'ght be cited, show that if the defendants, in such a case as this, acted upon legal adVice, their defense is perfect." of supreme court of this state, as indicated in the case v. Johnston, in 59 Mo. 557,. and again comlidered in 76 Mo. , 699., in then;lip.d; of Jljltige HOUGH, at 1ea,st, is that the taking of advice ofiCQunsel.prl:)sents,nothing perhaps,.than a prin,;a facie case of good ID.otive on the part of, the proseeutor, and of proba,ble cause; that it is nqt 9Qnclusive,.a1hheJd by the supreIIleQourt of the United States. Evenacceptipg, the purposes of this case, rul13 asth,us established: in this state, if tge prosecutorlaid before the county f!llJhefaots ptittainingto this case, or suchfllNts as be could have
MILLER V. CHICAGO, M. &lST. P. RY. CO.
909
discovered by the exercise of ordinary care and diligence under the cir· cumstances, and the prosecution was advised and instituted upon the direction of the county attorney, he has made' out, anyhow, a prima facie case which overcomes the evidence of plaintiff. It is insisted, however, in this connection; on the part of the learned counsel for plaintiff, that there were exterior facts and circumstances lying about and around this case, accessible to this prosecuting witness, which he could and ought to have discovered by the exercise of that degree of diligence and vigilance which the law exacts of him. Let us see about that. The prosecuting witness, a citizen of Wisconsin, comes into this state in the employ of defendant, looking after its property in· terests. He happens to be in this state on other duty at the time, and hears of this matter, and goes to the place some time after the fire. He discovers these facts. He examines these witnesses. Now, it is claimed, in the first place, on the'part of counsel, that this witness Watson ought to beheld liable for not discovering the fact that the veracity of the man Kemiedy could be successfully assailed in thatcommunitYiin other words,that he ought to be charged with the fact thllt,by inquiry tl.lted therefor, he might have discovered that witnesses in that neighborhood where this man lived could be brought into court to swear that hiS general reputation for truth and veracity was bad, so as to affect, and impair, his credibility asa witness. Now, as' I have already stated before in the progress of this trial, when that question arose, in my judgment that would carry the rule in question beyond all reason, and is without authority. The law presumes that everyman is a good citizen. The law presumes that he is truthful. The law pre:. sumes that he does live in the peace and dignity of the state, and that he will not lie. And if men were not to acoept upon faith the statements made to them by two or three witnesses as suffioient basis for a prosecution without first nosing around through the neighborhood to see if some man could not be found who might come into court :and'swear that this or that witness' reputation for truth and veracity was bad; in other words, if a man is to be mulcted for the institutiou of aprosecu. tion upon the ground that he did not discover beforehand that witnesses -could be called to assail the veracity of some witness called to establish £ome essential fact in theprosecution,-no man would be safe in insti. tuting a prosecution in the interesls of public peace. I don't think that the rule invoked by the plaintiff has any application to this instance. But, even be it conceded that Watson might have discovered that witnesses could be called successfully to assail the ,reputation of this man Kennedy for truth and veracity, the iact still reinains, testified to by two witnesses unimpeached, and no effort to impeach them, that they accompanied this man Kennedy at least to Grabast crossing; thatatleast two of them were present when this patch from off the boot was discov.. ered; and that this boot was taken and kept in possession; and shown to this proseCuting witness. And it is immaterial, for the purposes of this case, how. and where the witness Kennedy got those boots, because it is admitted by the plaintiff, hiJ,uself, on this :trial,that those were his
910 boots,andrthe proof ad'mits orno dispute that the patch found by these aUhat ;time' and place came' off of his boot.; Well, w,hat 'otherfact is there that the prosecuting witness ought to have discovered in this case that is of .an exculpatory character, for the IItisi'claimedhere by counsel for plaintiff.that the prosecuting witness,ought tb:have goneto'Dr..MiHer himself, and inquired of him whether beblllrned that house, andJearned from him whether he was at home1 andwhethel.' :he could prove an ,alibi by his two daughters. I presume counsel is not inearnestiri:such a proposition,-thatbefore a prosecuting,attOrney or witnells institutes proceedings he should go to the party accus,ed;;'and advise him in: ,ad conteroplated prosecution, that, he. was suspeoted, and ask him if he was guilty or innocent. Why, thelawoiself-preservation, the instinctoi human nature itself, would lead a: man to believe that the party thus accused, ,even if guilty, would say he was not guilty, and that he might resortto the common defeusej'inauch'oases, of analiliii. ,The law would not exact of a prosecuting witriessi$uchdiligenceandvigilance as to do III thing/which no rea-aonable ma.nundetJike circumstaneeswoulddo. No man, .in working ups case, goes to the panyaooUsed to:see ifhe is,guilt)'!, but ordinarily keep$his ,investigation to himself. He'does not let· the party suspected know of,tbeinvestigation, forJear he may escape, untiLhe ,is ready to have the capim served upollhim.. It is further claimed.that "he ought to have pursned,tbe .fact, developed ·to., him by the man Kennedy, that he traced theseJfoot-steps to the.rear ·door of Dr. Miller's drug-store; whioh would have led: fhimtodisco:ver;that there was a sidewalk up in town lea.ding ,out ,some. two or three hUndred feet from this drug-store, and that therefore -helshould have been persuaded from the discovery of that faet,that per-ha.ps:the witness Kennedy had not told. the truth about tracingthese foot-pr.illts"up there., '.To,my mind, there are two answel'sto that. Iathe:np;itnplace, the sidewalk, part of the way,wasof but two planks':JThe night, according .to the testimony of the plaintiff himself, was:hideouslydark.. It wonld :be verynatuTal for a man, in the darkness of night, to,j.alVoid'walking upon,a sidewalk oftwo planks, when he eouldnot see h.isway. He knew ,he was safe in the street, but ion the aidawalk it would be difficulLforhim to thread his way. But, at all that facteitself was not deemed of sufficient importance to the prosenution here,Jancl the defendant there, to -havebeeIi developed .upon thednvestigation before the trial ;magistrate. After: the plaintiff was aweekdritervened for preparAtion for trial, offering him every facility. Witnesses,we.re brought thenefor the state,and witnesses for t,p,e the plaintiff here, and, the trial gone through with. There ,¥ll8,a full e:xaniiruition'of all witnesses, evidence produced on both sides, and ,the .caSe arg.\!ed.byooUlisel; And: trial, involvingthe'repuw tiol1:.aud libertyio£ the .defendant,'.ap sueh im portanoe,: in his estimation; waslsttachedto:theexistence or non-existence of the sidewalk as to have Caused· that faet to: be brought:out updn:frial. Yet they claim that hecausethisprosecl1ting witilessdill hot disCQver that fact, or, if he dis.. oovered.jt,did notattaohthe sameiillll.portance:t (>'iUhey'now do for the
CI;IICAGO,'M;' &'S1':'i'. RY.
,911
first time, therefore he W'JlS guilty 'of think it is 'entirely a non sequitur. ' 'to the 'Presence of wa,teralong the railroad track,-the bther fact b,rought but this trialj-theyinsist that the. of. water in }he b9ttom,along,.'Yhich the Kennedy claIms to thIs track next mornmg, ought to have suggested to this prosecuting witn.ess that the story was improbable. For the first time in the history of this case, the pTesence of tliiswater at that point' wnsbrought into consideration: There was no evidence' Of it on 'the ttillibefore It developed here for the first trial by SOIxll'l, they ,saw ,it. It, is notti4;lc,eSsary,'f!?!; to comment on that beclj,l,ls,e, that is a question · forthedury,as,to what, weight and credibility they would attach,tO' ,the testimony of those witnesses.' It l1as:nevel'ibeendeveloped until at this ;:{,he l;l.ttel1tion, Qf ,the prosecuting was so (ar ap.on this, trial" '.to that fact.N Q that, any when ,witness, came :upc;>n the gropnp js presm,tGq.,.,Upon the,90n4-ary, tQe,. evil1ence. tpere and down. the ,track that: day, and epCQuqttlring no·wa,tel.'; ap4 . p,o that at the tilAe: the on the ground there was any 'water hipl,UPO'll jinquky,·. ::rhat ill ltPd ;no fact ;dis90veredby: witnesa.aqlle. time,as things ;then a p p e t W e d ; , ; . S0'thatJthe case,.nsnow developeliby the plaintifijsimplyshows that tlO"'faet was' thffi:i',known .to this ":prosecuting' wttness which' he' dia
on
or guIlt,. 'Whatthelf. effect would b.i1JIpon an iBsueias to: the innocence or guUto! the plaintiff is not a questionfor ,the determine: "Blit it does'not seem to the court thatjwith ana'l1onest juryeould .for a IIl.otnertt :tlie prosecutirig. witness had grounds, Qquqty' believ'ed,lfndjust as the magis.kate fq).lqd. to believe, from thefac,tBtand circumstances before him, t4at, reasonable CRtiSe. Now-oj the question is, what mngibla fact can go to this jU,ry them in . fi.llding a verdict for the plaintiff? .' Smnethil1g has in debate as to ,tlJeppssible differenceinthe ,r!Jle Qbtaill,B courts anli the federaljurisdictiollas to cir,TInder court will tal',e a case froJn the, is praqtical\y: 119 :difference as to ruJe. There ill perhaps alittIe THore .freedqm,anGl a little m,ore independence ofactio,n, .in .one jurisdiction than in the other, in, t4is respect; rule is .practically The rule as down ,in, ,the supremeqpurt of the United States in theccase of Pf,easant8 v. Fant, 22 Wall. 116, is.lLS follow!!: , .. . . : I . "lJHbe tl'i8cbarge o'fthift duty, it is tile 'ptoVince of 'tile court, eitber &fol'e or after the verdict. to decide whether suffi-
cient to support or justify a verdict in his favor; not whether. on all the evidence. the preponderating weight is in his favor.-that is the business of the
1)12
FEDERAL REPORTER \
jilry; but conceding to altthe evidence offered the greatest probative force 'Which, according to,the law of evidence, it is fairly entitled to, is it sufficient to justify a verdict? ,If it does not, th!lD it is the duty of the court, after a ,yerdict, to set itsside, and grant a trial. Must the court go through ceremony, in such a case, of submitting to the jury the testimony on which plaintiff relies, when it is clear to the jUdicial mind that, if the jury should find a verdict in favor of plaintiff, that verdict would beset aside, and a ,new, trial had? Such a proposition isabs'Urd; and accordingl,)' we hold the true principle to be the couJ1;, is ,satisfied that, conceding all the inthe jury cQuld justifiably draw from the testimony, the evidenc!, ins,qtDcient to warrant a for the plaintiff, thecoU1't should say 'sota tbejury, In such'c"sethe partycansubmit to a nonsuit, and try his case again, if hecaustreriKthen it,excep!; where the local law forbids a non· 8uit ati.that stage of the trial; or, if he bas done his best, he must abide the' of the court, subject to a right of review." Artd'thiuule has been approved bytbe supreme court 6f tbisstate in tbec8t:lEi of Powell v. Railway Co., 76 Mo. 80, 'in wbich theoourt say it is a' ]5roper tuletbat wbereverthe trial judge feels it would be his dutY'i tifidel' tbe obligation 'of his 'oa.th and a sense of justice to all parties,'; to: ( a new t'da.l, irthe jury saould return a verdict for the 'pla1ntitr,:he should take itfl'om the jury. Jtidge SHEQWOOD, in tbat case, 'reViewedtbe autborities, and sa.id:, ' " may be ftluridwhere it Is held that, if there is a 8cintilla of evidence in 8upport of a case, a jUdge is bound to leave It totbe jury: but the have establisbed a morereasonabillrule, to-Wit: That, beis left to; j uxy. there.is may every llase a pre,for the not whether there is literally P!' evidence, there is any UWll w!Jich a jury can Pl'operllproceed to find a ,verdict; (0' the party produt'lingJt, upon whom the burden of proof is imposed. So,'also,Jllfanother case, where the trial court, by an Instruction, had taken 'the case frpm tbe jury. and:\llrected a verdict for the defendants,Mr. Justice SWApl1:tll.deliverlng the o.pinion of the co.urt. said: 'It was proper to give .theinstrq!ltion if it were could not recpyer., Jt would have to proceed further, when such be the result. The practice 18'& wise olle. It saves time andcostR. It gi the certainty of apthe result", Of jUdiciallnvf'stigation. It draws clearly the plied line which' separates the provinces of the (judgeand jury, and fixes where it belongs the responsibility which should be l\Ssumed by the courts.'" , Speaking for mysel(, I say thatI 8malways exceedingly loath to I have interfere with the province of the jury. I have always, been upori!tlie'bellch, both in the state and in jurisdiction, tried to keep outtWthe jury-box;J!laving, to' the jury the' determination of all facts,--thQse from which different conclusions might be reached by pien of different minds. At the same time, where the evidence isohuQh a persuasive and conclusive character, on the one side, that it wouJd be utterly uiireasonable or unjust for the jury,either from prejudice'bTpassion, or from misconception of the caSe,' to render a verdict contrary to the whole law and the whole evidence in the case, the couU 9JIght ,t,o, have thecQurage to perform its duty, and go where the .law 19ads..Demurrer sustained.
eases
JrlISSOUBI I'AC. BY. CO. II. TEXAS &1'. BY. CO.
913
MISSOURI
PAC.
Ry. CO.
fl. TEXAS
& P. Ry. Co., (WILLIAMS, Intervenor.)
(Oilrcw"t Oourt, E. D. LowtBiana. April 12,1890.) L C.RBIEB-SHIPPrNG CATTLE-N:li:GLIGENOE.
In an action for damages to cattle from negligent .handling by a railroad, It appeared ,that the cattle had been driven over 100 QJiles- before they were shipped; that they were in poor condition, very wild, and hard to get on the cars; that some of them' got down and were injured before they had been carried any considerable distance; and that they were loaded on the cars by plaintiit. Held, that the damage from the condition of the cattle, and defendant was not liable.
It
Un4er ltElv Bt. Tex. art. 284l which provides that it Shall be the duty of the coU)mon Cl;Lrner ,to feed and water hve-stock during the time of conveyance, uliless otherwise proVided by special contract, the carrier is not liable, when it a.ppears tha.t it :was agreed that plaintiff shoald water and feed tb,e cattle, and the carrier was to stop for the purpose at a paT'ticular place, and there Is no evidence that the camel' was requested to stop before reaching the place named. Under Rev. Bt. U. S. S4886 which provides that no railroad shall confine live· reilt stock .in cars for more than 28 consecutive hours without unloading them and feeding ,for at least 5 consecutive hours the railroad Is not liable. whelt ,it appears thaHhere was a special contract that the shipper should feed and water tbe live-IItQCk;and there is no specillo evidence as to amount of the damage from the failure to feed and water. . . " ,
DuTY
TO FEBD AND WATER.
,&SAM_W:'uVE'RBY OWNER.
H.G. Williams.
In Equity. On exceptions to the master's report. , Ri!;e, ..A.rm8trong and John DawlerJ for intervenor. HlYWB Prenti8B, for receiver.
Intervention ·of
PABDQ, J.That intervenor's cattle suffered injuries anddamllges while in. transit from Pecos to Willow Springs is.not, disputed. The intervenorclaims that the cause was ne/l:ligence and bad handling. on the part of the railroad company. It is contended for the receiver that it was through negligence of the intervenor and his em ployes, .and on account of the poor condition of the stock at the time.of shipment. An examination of the evidence shows that the cattle were wintered in. Presidio county, Tex.; were wild; a part had been herded four or five Weeks, and some never herded; that they were gathered up and driven toPe-cos, a distance of over a hundred miles, for shipment; that it was intended to ship them at Toya, but the agent of the intervenor testifies that, "on penning a portion of the cattle in the company' stock-pen at that place, nine head. bogged down in the mud, and three of Said cattle died bfilfore I could, pull them out, and the other six were so exhausted that I lost them before I reached Pecos City, where I took the same for shipment;" that, in penning and loading the cattle for shipment, there was a.great deal oftrQuble arising from the wildneBs of the cattle and their weak condition, about 13 hours being taken to load them on the trains. The 'witnesses as to the OQndition of the stock at this time testify, substantially, as follows: ;S. M. Jones, the agent of the intervenor: "The cattle were in average shipping condition.." Tom Hammond, an employe of intervenor, assisted in the loading, and went through to Willow Springs with the first train: "Cattle in good condition; 2trong, v.41F.no.15-58