The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-06-29
Supreme Court of the Hawaiian Islands
In Banoo. April Term, 1886.
JAooD Pn1II1rs VS.. G. j. WAILEB

JacoR PHILLIPS VS.. G. J. WALLED
nrroRE JUDD, C. L. M'CULLY AND PRESTON, IA.
Opinion of the Court per JUDD C.J
Tins is suit to recover damages for ma
licious prosecution, the plaintiff claiming that
he was maliciously, falsely and without prob
,I1e cause, accused of the crime OF burglary,
Ind was arrested and imprisoned therefor at
the instance of defendant The jury found a
special verdict, that the defendant was justi-
fed in believing that he had probable and
reasonable cause to arrest the plaintiff, and
therefore, a verdict was rendered for defend
ant. The case comes to us on plaintiffs ex-
ceptions to rulings Of the Court in the progress
of the trial, and to various portions of the
charge to the Jury. The exceptions de not
appear to be set forth in the bill in the order
they were taken at the trial, and they are
therefore confusing Some fifteen requests for
instructions were asked for. The first except
ion is the admission Of the testimony referring
70 KEYS found on plaintiff after arrest The
discussion arose, as appears by notes OF the
: presiding Justice, as to the admissibility Of
the testimony by the defendant, Waller, es to
the statements made to him by police officer
Marcos. The defendants counsel offered to
prove that two keys we're found on plaintiff,
on his arrest-that officer Marcos took the
keys 10 the house of the defendant on the
same day: that the keys were tried on the
locks: one was found TO open the outer door
and one the inner door; that the locks were
peculiar ones and needed peculiar keys to open
them; also that great many keys had been
tried by Waller and his wife without succeed
.ing in opening the doors; (witness produces
the keys to show that thoy were filed to make
skeleton keys,) that Marcos had tried the keys
0in the house and that this was communicated
10 defendant after the arrest. This evidence
was offered in mitigation of damages as to
|, continuing imprisonment of plaintiff and as
part of the res geStae. The Court said that il
mould admit the testimony. The jury had re-
tired while this discussion took place and the
Courradjourned for the day without the offered
Testimony being introduced. The next morn
ing tia witness, Waller, was asked, "When did
You first hear Of these keys?" He answered,
''0n the Saturday afternoon of the arrest, from
my wife" This is all Waller said on the sub
iect Mrs. Waller testified, that the first time
4 Marcos came, after the arrest, he brought the
Nkeys.
Marcos testified: Found these keys on plain
tiff: went to Waller's house and tried doors.
One opens front door, and one, back door. call
the front door the one on the WAIKIKI side.
One opens inner door ! asked defendant as
to KEYS lie said Que belonged to room up
stairs and one TO his own room in Fowler's
yard went upstairs; the key would not fl"
The plaintiff was recalled 10 account for the
KEYS. He said ''This is the key of the room
in which my clothes are keptin Walters shop.
This belongs to Fowler. l occupied room No.
S. The one at Walters was not tried because
thore was new lock: the other (key) opens
my room at Fowler's. did not file the keys"
We think the testimony was admissible
a. part of the res 0eStde, and as tending to
mitigate damages, as this knowledge was ac-
quired by defendant on the afternoon OF the
arrest aud while plaintiff was still in prison.
So far as it afforded proof of guilt of the plain
tiff, it was probably not admissible, and the
Jury was charged that it must appear that the
facts, or so much Of them as was sufficient to
iNduce the belief in the guilt Of the plaintiff,
was communicated to defendant before he
commenced the prosecution.
In Bacon vs. Towne, 4 Cush. the Court say
that the defendant in an action for malicious
prosecution, may give evidence Of facts tend
ing to prove the plaintiff guilty of the criminal
charge imputed to him, both in proof of prob
able cause and mitigation of damages: al
tb,uch lie is not prepared with evidence to
show that these facts were known to him at
the time Of the complaint against him"
y. This Instruction, we may here remark, COW
ers instruction No. XIV, asked for by plaintiff
as follows: ''Only those facts and Gircum-
stances, which were within tue knowledge OF
defendant, prior to or at the time OF preierring
the charge, can tend TO exonerate him from
malice and permit him TO ground upon them
the belief that reasonable and probable cause
existed tor his actions.
The second exception is to the admission OF
evidence of defendant, OF a conversation with
officer Marcos, and the objection was made
+, rat. as Marcos was not an attorney or coun-
so, Tor at law, he was not competent TO give
TIC defendant was asked what he did after
tho IN, ormatiou was given him. He said:
"p.1;s, officer Fehlber said / had better see
Danutv yarshal, Mr. Dayton. i followed
Fsblhe, 20 'he station house and asked TO see
D,yton vas told by Marcos Dayton was
bnsv Marcos ;ras then engaged in writing
ont tho warrant for arrest of men. gave no
;nstrpctions foand lie expected me to swear
4 a. r,rrant. o6iec:ed; asked consequence
R. ,ruiltv.~ II : said. ''They can't touch
at 81 still objected : He said: we
% lis protect honest mes. tuoh swoIs :,
n larran, on assurance gwen Dy Marcos.
kounsel f,f plaintiff excepted TO thls eVi-
as irrelevant and lncomgsNsn. because
lfre officer was not known 20 be an at
or counsellor at law competent 10 give
e.s and tie evidence should be stneSeu
u me Cour, declined 10 order The testimony
s,r;cIen ont II was not offered by defend
ants counsel as a justification OF the defend
ami. as having acted upon responsible ADVICE;
buti was giyen by defendant as q narrative
Of events. Il was the account OF his proceed
inrs in swearing out tie warrant IN question
and r1uld ,,ot have been exciuueu.
We pass now to the INSTRUCTIONS pray ca ioI'
L An Abandonment of prosecution lR SUI
hcient 10 entitlv the plaintiff to maintain thls
action: il is not necessary that he should have
been tried and acquitted" The Court charged;
the plaintiff must prove that he has been
- prosecuted bv defendant aud that the prosecu.,, I,
toy has Terminated. This has been proved.
Ce ti6yll this was all that was necessary
,e lind, IILrd. Iyth aud Vth Instructions
requested are as follows:
II. Ii does not depend upon the guilt OF the
accused nor whether the prosecutor believed
him guilty to show probable cause, but whether
N not the facts and circumstances within the
'detendants knowledge, and upon which ne
acted were sufficient TO raise reasonable
isrouHd oi suspicion in the mind of an ordIpa-
rily cautious man, aud did upen such ground
defendant believe plaintiff guilty.
III. II defendant did not knoS any facts
constituting probable cause the existence OF
probable cause Is no defence.
~ The plaintiff must show knowledge or
information entitled 10 credit which led him to
prosecute, 10 establish tie existence Of prob
able cause
'; IL the jury find from tho evidence that
1ne facts aud circumstances within the defend
@u' knowledge we're not sufficient to raise a
seasoaso'e ground Of suspicion in the mind Of
81 ~ o,u.,inarily cautious man Of the guilt Of
plsla.il' they eaanot 6ad that probable cause
e11s'ea, e1SS In place Of them the Court charged:
ttSoaDle cause is such slate of facts in The