The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1866-09-27

~ ANbN W Ahk HVkhA bAAfi AsAhNab ~
nos. w. HARRIS.
Defendant IN error brought this action In
the court below. 10 recover If plaintiff IN
error, damages fof malicious prosecution
! Upon the issue joined, there was jury and
verdict for defendant in error, and Judgment
aud tho cause IL prosecuted her upon wit
Of error 10 reverse that Judgment
The err0r relied on, appears By BIZ OF
, exceptions taken aud allowed ON the trial
! by this bill Of exceptions u appears that a
motion was made for new trial, which was
refused No motion or Judgment thereon,
appears IN the record otherwise than by The
bin 0f exceptions IN the case Of the New
I o s j. G. y u. H. Co. Va. Allbrittou, -
Miss H. p. ~, It was held, that the Office Of
u bill NJ exceptions, Is 10 place upon record
such eStfancous matters ~ do not neceHsnri.
Is constitute . part Of the record Ia the
cause. The plcadings Of the parties aud the
. Judgment of the court, must appear bF the
record itsclf and cannot be supplied 10y q
bill Of exceptions. They should not be- con.
tanned In thrbill Of exceptions We cannot
therefore notice tho crfUr assigned IN this
respect
Tho other assignments refer 10 the action
Of the CONT ia the progress Of the trial.
The first assignment rs in reference 80 the
asked By counsel for plaintiff in error wheth-
or lac stated an the facts In his knowledge
ut the time lac CONSULTED counsel in reference
| 10 the prosecution, out Of which this suit
originated, aud asked his adj in relation
| therctOI This question was objected to by
| counsel for defendant In error on the ground
| that II was not competent for the witness 10
| say that hc told his counsel "al the facts"
but that he should state what he did tell"
!, 4. .l.t,.
think correctly. The object of the tcstimu-
ny on the part Of plaintf IN error was to
show probable cause and 10 rcbut tie idea
Of malice hy showing that lac had consulted
counsel learned ia tie law, before institut-
ing the prosecution, aud the force Of this
testimony could only be- asCcltancd by the
truthfuncss ms well M the full disclosure of
the facts upon which counsel is supposed to
have founded his Judgment. To allow the
witness to state simply that he Stated all
the facts IN his l,uowiedgc," instead Of stat
ing rhdi ficfs he communicated 10 his cuun-
sell would have enabled the witness who wns
u party defendant to the action to cyadc the
real question upon which this matter of de.
fence rested.
The next assignment relied on is that the !
court erred IN instfuctinS the jury, at the |
instance of defendant IN error, "tlIat if they |
believed from the evidence, that the defend |
ant instituted and carried on u prosecution |
against plaintiff on the charge of larceny, |
of which ho was acquitted, and that the |
prosecution was without probable cause. and |
malicious they must lind for the plaintin"
The instruction was erroneous, because il |
left the question of probable cause to the
jury entirely In the case of Grccnwall vs.
Mills, 3lst Miss. X p lGi, ii * said that
since the leading case of Johnston vs. Sut-
ton q T. r. y. 5l0l it il universally agreed
that the question of probable cause il a mix.
ed question of law and Of fact That
whether the circumstances alleged TO con-
stitnte probable cause are sufficiently cstab-
lishcd is matter of fact for the jury, but
whether surprising thom to he true. rs
allcdged they amount to probable cause, is a
question of law to be decided by the court"
Il Is held In this case, "that IL ia error TO re-
fer the determination of the question of
probable cause to the jury under ann state of
case without declaring to them the priuol.
Plies by which they must he governed in de-
tormining the question" The authorities
for this position are cited and the duty of
tho court in instrncting the jury on this
point is clearly indicated,
The third assignment H. that the court erred
in giving the second instruction rs well as
the third for plantl below, as follows:
"2ud, That the discharge and ncquittal of
party by the court before whom he was tried ,
on tie charge of larceny Is prmd tdciC evil
donCc of the want of probable cause for the
prosecutions 3D., That in the prosecution !
for larceny, the want or absence of probable {
cause is prlma tdcid evidence OF malice in the :
promises
The second instruction is correctly stated, a
and belongs to that class of pitsHapioRs Of h
laT, which Mr. Groeuleaf in his work ON ev- d
idcncc denonnatrs "dispHtdblc WcsHR,piiops
Of idlr' rs c0ntra-distinguished from "c0R- ,
ri8sirs prcSmpiioHs Of lar" In the former I
he ldic iteG without the aid of jury, inters G
the existence OF an unknown fact from the n
proved existence of another in the absence A
If all opposing evidences and il none such a
lc offered, the jury are bound to find in favor .
# such presumption of law. {
In the latter class the rule of law merely II
ttachcs itself 10 circumstances when prov d,
d; it is not cftduccd from them or inferred. .,
I is not n rule of Inference" from testimony, II
ut u rule Of protection rs eNpedient and for q
he general good, torbidding all farther evil s
cncc, -
Bnt the third instruction is too strongly n
ated The want Improbable cause, is not "
irihd fdtid cridcRcc of malicc." Mr.. Green u
at states the rule thus, "The proof final
q need not Ice direct, il may be inferred from is
Il hdy BE- inferred, by I,
e jury, from the want of probable cause" ~
NJ lUlt rs stated nN MI. GleCnlcAi, shows -
at the Inference of malice which mdy b. II
avn FROM the want of probable cause, is iii
Il an inference IF lac or "piind tIcie cri- al
nee 10y which the Jury are bound at all =
eutS, but "the whole matter is free before III
EN-, unemharrassed by any consideration la
policy, or convenience and unlimited hy co
y boundaries, but those of truth; to be de u,
led, 10y themselves. according to the con-
rtions of their own understanding" And ol
stated by Mr.. Greenleaf which he demons sll
ites prescriptions IF tdcts' as oontra-dis- IL
lguished irum the two former divisions, "a.
lich he deuominates "prcsHmp'ioas Of ldw." III
He says. 'prcSHRpijoRs ~ facts" can hardly Isl
said, with propriety, 20 belong to the law ca
evidence. They are in truth, but mere in
yumentS.' "rhey differ from pre-
nptions Of law. in this essential respect ~
At while those, are reduced 10 fixed rules q
1 constitute branch of the particular Iii
,tem of Jurisprudence, 90 which they be- no
u, these merely natural presumptions, are l.,
ayed wholly and directly from the circum- ~
nee Of the particular case, 10y means of W
common experience of mankind, without be
aid, or control of any rules ef law what o.
TT The jury may OF may not. therefore, II.
fer malice" from the fact or circumstance :
The event Of probable canSe. 10 Is not pc
ma ficit cr6ieHor or an iHfTcEot u latr by III
ich jury Is bound until the contrary is IN,
Ncd--hut a natural Presumption n
ell irom the circumstances Of the partlcu- y
case, hy experience. without the aid, or elt
ff.,f ttfH - flta gnnzfHaraf IN.