The Hawaiian gazette., 1868-11-11

An CHEu VS.. wose KuAr.

Allen, c. J., Hartwell, J. (Austin, J. did
not sit, having been of counsel in the case.)
The opinion of the Court was rendered by
Mr.. Justice Hartwell, Allen, c. J. concurring.
This was O bill of exceptions to a nonsuit
ordered by the presiding Judge of this court
at the last July term. The defendant had
procured the arrest, indictment and trial of
the plaintiff, on charge of embezzlement.
The plaintiff introduced in evidence the re-
cords of the proceedings before the commit
ting magistrate, and at the trial in the last
April term, also the testimony of ]. Mont
gomery, David Dayton, Kailiule, Pakeokeo,
w. G. Parke, R. G. Davis, J. w. Martin and
w. C. Jones, and closed his case. The Court
then, on motion of the defendants counsel,
ordered a nonsuit, on the ground that the
plaintiff had failed to show want of probable
cause.
This case presents two questions, viz: had
the presiding Judge a right to decide whether
there was or was not probable cause for the
prosecution, and, provided he had such right,
did the facts authorize the judgment given
1t was never doubted that want of probable
cause lies at the foundation of this action,
and must beaffirmatively shown by the plain
tiff TO entitle him to a verdict, and that the
existence of probable cause is an effectual
bar to the action. But the plaintiff counsel
urge that this is a mixed question of law and
fact, which should have gone to the jury un-
der proper instructions from the court; that
it is for the jury alone to say whether there
was malice or not, although the law may re-
quire them to presume malice from want of
probable cause; and that as the plaintiff has
the burden of proving negative, where the
facts lie mainly in the knowledge of the de-
fendant, slight evidence may suffice to prove
want of such cause. These positions are sus-
tanned by the authorities. tombstone VS.. SUIT
ton, T. r. 493. Baldwin vs.. Weed, 17Wend.
227. And the authorities further establish,
that where there are facts in controversy
from which, if true, the jury might infer want
of probable cause, and if not true, its exist
ence, it would be error for the court to weigh
and pass upon such evidence. Munns VS..
Dupont, Wash. C. C. 81. 10
1t is equally well settled that where there
are no facts in controversy material 10 the
issue, the court should decide whether the
facts proved do or do not show want of prob
able cause, and may properly order nom
suit if they do not. Davis VS.. Hardy, 6 B. &
c. 224. Gloon VS.. Gerry, 13 Gray, 2Ol. Masten
VS.. Deyo, 2 Wend. 429. Kidder g. ux VS..
Ill af n An
case is still stronger if the evidence offered
not only fails to show want of probable cause,
but should prove that such cause did exist.
In such case, it would be the duty of the
court to instruct the jury to find q verdict for
the plaintiff on the facts proved, whatever
they might find as to the disputed but imma-
terial facts.
"Probable cause is such state of facts in
the mind of the prosecutor as would lead
man of ordinary caution and prudence to be-
lieye, or entertain an honest and strong sus-
picion, that the person arrested is guilty"
Shaw, c. j., in Bacon VS.. Towne ct al, 4 Cush.
239. In Broad VS.. Ham, Bing. N. c. 10,
Tindal, C. j., says: "There must be rea-
mind of discreet man; there must also be a
probable cause, such as would operate on the
mind of the party making the charge"
Adopting these definitions, We are of opinion
that the plaintiff himself has submitted evil
dence of facts which authorized nonsuit.
This is not suit to be favored by the courts.
1t is not for the plaintiff 10 complain, when,
! upon his own showing, he does not come
into court with clean hands. The evidence
of the plaintiffs own witnesses is that the
defendants legal adviser had counselled him
that the plaintiff had acted dishonorably, and
had told the plaintiff that he ought to pay
what he owed the defendant
The facts are admitted, or are not contro-
verted, that the defendants firm, Chulan
Bros, sold the plaintiff goods at cost, on an
agreement that they should have ten per cent
above on sales, and that he should buy only of
them; that they sent their agent, All Kim,
to Hanapepe, where the plaintiff kept his
store, and that All Kim, pursuant to their
Instructions, took an account of stock and
cash on hand that the plaintiff first COM
planned to the local magistrate at Waimea
that All Kim was trespassing on his property,
but upon the day fixed for the hearing, as
the magistrate testifes, had come to an un-
derstanding with All Kim, transferring the
store and contents to him; that this agree
ment was written by the magistrate, and
signed by the plaintiff and An Kim, March
IL; that All Kim gave the plaintiff a letter
to Chulan Bros, dated March 8, informing
them that he had counted the goods and cash,
and paid to the plaintiff $50 81 to deliver, to-
gether with the letter and book containing
the inventory Of stock, to the defendant;
that the book and letter were delivered by
the plaintiff to the defendant at Honolulu,
and In reply to the defendants demand for
for the money, the plaintiff put him of from
time to time, admitting that he had the
money, and saying at one time that he had
forgotten it, and finally, on going with the
defendant to Judge Austin, claiming part Of
the money as due him on set of, still admit
ing, however, that the rest Of the money be-
longed to the defendant; that the plaintiff
finally left for Kauai without paying the
money, or any part Of it, or attempting to ac-
count for it, and that on the PLAINTIFF return
to Honolulu the defendant made q complaint