#### August Haupt, plaintiff and respondent, *vs.*Hermann Pohlmann, defendant and appellant.

1. A judge at the trial is not hound, without the request of parties, to give any instructions to the jury. The latter are presumed to he acquainted with all the rules of law, in regard to which the partie^ do not require them to he instructed, or the court does not instruct them.

2. In an action for malicious prosecution in arresting the plaintiff for felony, the fact that the plaintiff was, on the hearing, committed by the magistrate to await the action of the grand jury, is not conclusive evidence of probable cause.

3. Conclusive evidence means either a presumption of law, or else evidence so strong as to overbear all other in the case to the contrary.

4. In an action for malicious prosecution, want of probable cause, though a question of law, may properly be passed upon by the jury, in the absence of any request to the judge to instruct them as to the law.

6. A refusal to nonsuit will be sustained on appeal, if it appears that there was finally in the case sufficient evidence to be submitted to the jury.

6. Slighter evidence will suffice, to establish the want of probable cause, than to establish an affirmative.

7. What constitutes sufficient probable cause to justify a prosecution for larceny.

(Before Robertson, White and Barbour, JJ.)

Heard June 10,1863;

decided July 11, 1863.

*122This was an appeal from a judgment entered on a verdict in favor of the defendant.

The actioá was brought by August Haup.t against Hermann F. Pohlmann, to recover damages laid at $10,000, for malicious prosecution and imprisonment. The complaint alleged a malicious prosecution of the plaintiff by the defendant, in charging him with grand larceny and embezzlement; the arrest, examination and commitment, and the discharge of the plaintiff, the grand jury having refused to return a true bill. The answer denied want of probable cause, and malice, and averred that the defendant acted upon probable cause and under advice of counsel.

The cause was tried before Justice White, and a jury, on the 14th day of November, 1861.

When the plaintiff rested his case, it appeared that he was superintendent of the defendant’s laundry, up to the 18th day of July, 1860; that he received and collected about $150 without the knowledge of the defendant and without rendering any account therefor; that on the 18th day of July, he left the employ of the defendant; that he took a pass book of'a Mrs. Yan Houten with him, when he left, which contained the items of moneys paid to him by her, all of which became first known to the defendant after the plaintiff had left; the plaintiff did not claim? that he was authorized to retain these sums. Nothing was shown on the part of the plaintiff to explain a deficiency in the number of shirts entrusted to him, or to show that the defendant had no reasonable grounds of believing that the plaintiff had taken the missing shirts.

A motion made by the defendant to dismiss the complaint was denied, and exception taken.

On the part of the defendant, it was then shown that the plan tiff received a lot of shirts from the defendant’s customers ; after the plaintiff had left,. the defendant and a witness, Weilder, examined their account of shirts delivered and received, and found a deficiency of about twenty dozen, for which the defendant paid $157. There was evidence that the polaintiff’s reputation for truth and veracity was bad. The *123defendant testified that he had received notice of the plaintiff’s intention to leave ; found his cloak and shawl in the plaintiff’s possession, up town; never saw a book of account of money collected by the plaintiff, and did not know that he had received money from Mrs. Van Houten, but ascertained this fact about six days after the plaintiff had left; that he acted upon the advice of counsel, in making the charge. On a former occasion, when two shirts were missing, the foreman told the defendant that they had been delivered to the plaintiff, who returned them afterwards, after they had been worn. The plaintiff called several witnesses to prove his good character. The counsel for the defendant then renewed the motion to dismiss the complaint, on the ground that from the evidence it appeared that the defendant had probable cause for prefering the charge. The court denied the motion, and the defendant excepted.

The court thereupon charged the jury, among other things, as follows: “ The point for your consideration is,- whether the defendant proceeded, in the matter of the prosecution of the plaintiff, in a careful, honest, prudent manner, and without malice. If you think he has done so,, and that there was probable cause for his action in the premises, then he is entitled to a verdict at your hands. If, on the contrary, you find that there was no probable cause for the defendant’s supposing that there had been a theft committed, or money embezzled by the plaintiff; if you think it was mere unreasonable suspicion, such as no man of ordinary understanding should have entertained, you are to determine whether there was probable cause for the action of the defendant in the matter complained of, and whether he acted in a malicious, or in a prudent, reasonable and temperate manner.” The defendant excepted to that part of the charge instructing the jury that they were to determine, from all the facts in the case, whether there was probable cause or not.

The counsel for the defendant requested the court to charge the jury that the commitment before the magistrate was evidence of probable cause. The court declined so to charge, *124"but did charge the jury as follows: “The commitment is an item of evidence showing probable cause, but is by no means conclusive evidence.” To this the defendant’s counsel excepted.

The jury thereupon rendered a verdict for the plaintiff, for the sum of $600. From the judgment entered upon this verdict the defendant appealed.

*James*Eschwege, for the defendant, appellant.

I. The learned court erred in refusing to dismiss the complaint when the plaintiff rested.

1. The proceedings and depositions before the police magistrate read in evidence by the plaintiff, and his commitment, are evidence of probable cause.

2. The plaintiff failed to show a want of probable cause. The fact that the grand jury did not return a true bill, is not *prima facie*evidence of want of probable cause. *(Byne*v. *Moore,*5 *Taunt.*187. *Freeman*v. *Arkell, 2 B. & C.*494. *Vanderbilt*v. *Mathis, 5 Duer,*304.)

3. The plaintiff failed to prove malice on the part of the defendant. *(Bulkeley*v. *Smith, 2 Duer,*271. *Vanderbilt*v. *Mathis, 5 id.*304.) When, as in this'case, upon the jdaintiff resting, a verdict in his favor would be against or not sustained by the evidence, a nonsuit should be granted. *(Ernst*v. *The Hudson River R. R. Co.,*24 *How. Pr.*97, *Wilds*v. *The Hudson River R. R. Co.,*24 *N. Y. Rep.*430.)

II. The learned judge erred in refusing to dismiss the complaint after the partiés had rested ;• the uncontroverted and clearly established facts not being sufficient to prove a want of probable cause. *(Besson*v. *Southard,*10 *N. Y. Rep.*236. *Bulkeley*v. Smith, 2 *Duer,*261. *Masten*v. *Deyo, 2 Wend.*424, 426. *Burlingame*v. *Burlingame,*8 *Cowen,*141.)

III. The court erred in instructing the jury that “they, the jury, were to determine from all the facts in the case, whether there was probable cause or not.” Probable cause is in all cases a question of law, in relation to which the judge who tries the cause is bound to express a positive opinion. *(Bulkeley*v. *Smith, supra. Bulkeley*v. *Keteltas, 6 N. Y. Rep.*384.)

*125IY. The court erred in qualifying the request to charge, made by the defendant, that the commitment was evidence of probable cause; by adding the qualification, the coúrt left it to the jury to find that the commitment was not evidence of probable cause.

Y. The verdict is against the evidence. The jury found that the charge of embezzlement was made without any probable cause; the account signed by the plaintiff, his own admission, and offered on his part, amounts to proof of probable cause. *(Scanlan*v. *Cowley, 2 Hilton,*489.) The jury, although charged by the court, that the plaintiff, to recover, must establish malice on the part of the defendant, have, in the absence of all proof of such malice, found a verdict for the plaintiff. *(Bulkeley*v. *Smith, supra.)*

*Samuel Hirsch,*for the plaintiff, respondent.

I. The judge on the trial passed three times on the question of probable cause, as matter of law. (1.) In denying the motion of the appellant’s attorney below, for a -nonsuit. (2.) When the plaintiff rested his case ; and lastly, when all the testimony on the part of the plaintiff was in,-, viz. in his charge to the jury.

II. There was evidence to show the absence of probable cause for the arrest and imprisonment of the plaintiff, and malice in the preferring and prosecuting of the criminal charges. The plaintiff .had rendered account of the moneys" received and expended before the imprisonment and alleged malicious prosecution, and the account so rendered is remarkably particular. -There was nothing from which the defendant could reasonably have inferred or suspected the larceny of the shirts by the plaintiff. The attempt to impeach the character of the plaintiff proves the malice of the defendant.

ITT. The testimony as to the want of probable cause, as well as to the existence thereof, was conflicting, and was a proper element for the consideration of the jury in determining what damages, if any, they should award to the plaintiff, and .was, therefore, properly submitted to the jury, after the *126judge had himself passed upon the question of probable cause, as a question of law.

Robertson, J.

In this action, which is brought for a malicious prosecution, the principal complaint of the action of the court on the trial is, that the evidence not having been sufficient to establish a want of probable cause, it should, therefore, not have been left to the jury. There was no request made to the court to instruct the jury that any particular state of facts did not or did constitute probable cause in law. It did instruct them that they *“were to determine from all the facts in the case, whether there was probable cause,”*to which an exception was taken. A request was made to charge the jury that “the commitment was evidence of probable *cause;”*which the court declined to charge in those words, but did instruct the jury that such “ commitment was an item of evidence, but by no means conclusive evidenceto which also an exception was taken. Neither of those instructions were improper. *Prima facie*every case tried before a jury, unless otherwise required, is to be determined by them; a court is not bound, without the request of parties, to give' any instructions to them, and jurors are presumed to be acquainted with all the rules of law, in regard to which the parties do not request them to be instructed or the court does not instruct them. Probable cause was an essential issue in this case; the testimony was addressed to the jury, and it *toas*their province to determine from the established facts in the case, in the absence of any instruction to the contrary, whether there was a want of probable cause; clearly an instruction to the reverse of such-proposition would not have been correct. If the counsel was apprehensive that the jury would understand the court as saying that probable cause was a question of fact and not of law, he should have required the instruction to be made more definite, by calling on the court to pass upon such proposition more definitely. *(Wyman*v. *Hart,*12 *How. Pr.*122. *Winchell*v. *Heeks,*18 *N. Y. Rep.*558. *Law*v. *Merrills,*6 *Wend.*268.) The charge that a commitment is not *conclusive*evidence of *127probable cause is correct, and does not qualify its being evidence, but merely affects its weight as such; conclusive evidence means either a presumption of law, or else evidence so strong as to overbear all other in the case to the contrary. *(Aeby*v. *Rapelye,*1 *Hill,*9.)

The refusal to dismiss the complaint is of course sustained by the other evidence in the case, if it furnishes enough to go to the jury upon, and it is wholly immaterial whether at the time of the denial of such motion there was sufficient or not.

The right to permit new evidence to be introduced is entirely a matter of discretion with the court before the cause is disposed of and the trial ended. But the defendant’s counsel renewed the motion to dismiss upon the ground that the. facts in the case showed a want of probable cause, as matter of law, and therefore there was nothing to submit to the jury.

The allegations in the complaint of a charge by the defendant, before some police justice in the city of New York, against the plaintiff, of a felonious embezzlement of certain moneys belonging to him, and of a felonious larceny of certain shirts, on which a warrant was issued and the plaintiff detained in custody, is admitted in the answer. It sets up as a defense that he made such charge believing the plaintiff to be guilty of the offense charged, and not through malice; avers that the plaintiff was in his employ as clerk, from January to July, 1860, and received a large sum of money as such, and applied the same to his own use, without the defendant’s knowledge. That he left the defendant’s employ on the 19th of July, 1860, without consulting him, and he did not know of his collecting such moneys until after such departure. Also that the .plaintiff received a large quantity of shirts for the defendant, from ■ a firm, (Strauss *&*Co.) to be washed, and after the plaintiff left, a large number of them were missing, and the defendant suspected him of, and therefore charged him with, a larceny. Also that he made a full statement of the facts on which such charges were founded to. a counsel, by whom he was advised that the plaintiff was guilty of such charges, and they could *128be sustained, and therefore he commenced such proceedings, and employed such counsel to conduct them.

The plaintiff, to establish the want of probable cause, introduced in evidence three depositions of the defendant, taken on the 26th and 30th of July, 1860, and two by two other persons, , severally, purporting to be sworn to before a police justice of the city of New York; which were admitted without objection. They were proved to have been taken from the files of the clerk of the court of sessions; how or by whom placed there did not appear. They did not purport to be examinations of any witnesses on any charge, or that the magistrate before whom they were sworn issued the warrant on which the plaintiff was arrested; or that he detained him for examination or inquiry. They were, therefore, simply affidavits made by the defendant, containing his version of, the plaintiff’s conduct.

The first of these depositions of the defendant states the retention by the plaintiff of the moneys received by him as employee, and collected from customers, and that the defendant received on the previous day from a friend of the plaintiff’s an account of the moneys collected by him, alleged to be but not annexed to such deposition. It also denies any authority to the plaintiff to collect or receive such moneys, and that whatever moneys he received he was bound to pay over daily to the defendant. It also alleged that the plaintiff had quit his employment, and that a large number of shirts received by him from a customer had disappeared from his place of business, and had not been seen since the plaintiff left his employ. His other affidavits tend to sustain the same state of facts, and speak of certain papers as produced which are not identified or proved in any way. Another affidavit of a customer of the defendant’s shows the collection of money by the plaintiff from her, and another of the clerk of the firm, whose shirts had disappeared, of the number received from him by the plaintiff personally and delivered by the latter to him, and the quantity unaccounted for. The defendant admits in such *129affidavits, the receipt by him, from a Mr. Hahn, of the account of moneys collected by the defendant, in his writing.

Upon the charge of embezzlement, the only defect of the testimony would be, in some want of authority of the plaintiff to collect the moneys- withheld by him, it being proved that he did withhold them; his right to retain them for his use or disburse them for the defendant’s. Except the testimony of Mr. Hahn, there is no evidence in regard to such authority beyond the plaintiff’s and defendant’s. He states that the defendant once told him it was the same thing whether he paid his bills to himself, or the plaintiff, who was his foreman ; and again, that the latter did not come to his place of business because he was sick, and that he would have to give up the -business unless he had a man who understood it. This was three or four days after the plaintiff left and the witness took his account of the money received by him to the defendant to procure a settlement. The testimony of the plaintiff and defendant is conflicting as to the authority of the former to receive and disburse the moneys of the latter. It is true, the plaintiff is obliged to establish a negative, viz. Want of probable cause, but slighter evidence may do that, than if he had to establish an affirmative. It is true, the plaintiff’s character for truth and veracity was assailed, but it was sustained by about the same number of witnesses, and his credibility was a proper question for the jury; as well as the relative credit to be given to his own account and the defendant’s.

In regard to the charge' of larceny, however, it was established that the plaintiff had received the articles and they were under his charge, and were not produced or accounted for; and although others had access to the same place of deposit, it was a question as to who took them; the foreman, who was bound to see to their safe keeping, or a workman under him. The foreman left without notice or reason, apparently, and the other remained. Between the two the defendant was justified in suspecting the former. In law, therefore, there was probable cause for such accusation, whether the. *130plaintiff was innocent or guilty, and the defendant was not liable for any damages arising from that branch of the charge. *(Bulkeley*v. Smith, 2 *Seld.*384. *S. C. 2*Duer, 261. *Vanderbilt*v. Mathis, 5 id 304.) As the court was not asked to charge the jury upon that point, it would not be available upon an exception; but as it was left to the jury, they evidently must have based their estimate of damages upon the ground of the malice of both accusations. Considering the proof of the previous conduct and character of the plaintiff in pecuniary transactions where he received money for others, the damage to his. character by a charge of embezzlement would be highly overrated by the sum given. Even so far as his character for veracity is concerned, positive testimony, if reliable, .would be far more effectual than negative, of persons who have heard nothing; the experience of both with public opinion respecting it, should be equally great to balance them. But the striking proof of particular transactions shows considerable and frequent disregard as to pecuniary obligations^ Hone of them, however, approach the criminality of stealing, and I can not but think the greater portion of the damages was given for that charge. The verdict ought therefore to be reduced as excessive.

The order denying a new trial should therefore be reversed, on the defendant’s paying the costs of the former trial of such motion and the appeal therefrom, unless the plaintiff will elect to reduce his damages to $300, which is nearly $20 a day for his imprisonment, and deduct $15 from the extra allowance made;1 in which latter case both the judgment and order denying a new trial to stand. Ho costs to be allowed on the appeal from the judgment unless the defendant fail to pay the costs above specified in five days after they are adjusted, in which case both the judgment and order must be affirmed with costs,

White and Barbour,-JJ. concurred in this opinion.

Judgment accordingly.