4 In an action for the malicious prosecution of a civil suit the same questions arise, and the state of the authorities appears to be the same. Recovery in the court of the first instance, though the judgment is subsequently set aside and the final trial results in favor of the party now plaintiff, has by some courts been held conclusive on the question of the presence of probable cause, but in others it is held that the judgment may be impeached by proof that it was obtained by fraud or perjury. In an action for a malicious prosecution, brought in a state court, it has been held that the decree of the circuit court of the United States in the action complained of is conclusive evidence of probable cause; although an adverse judgment had been rendered by the supreme court of the state in a prior action by the defendant against a different party. Though there is little authority on the point, it seems that a plea of guilty, entered by a defendant, is conclusive evidence of probable cause, by the party's own admission, unless the entering of such a plea was accomplished by fraudulent means. Commitments to an insane asylum, though not necessarily ex parte, do not rank as final adjudications of probable cause, nor preclude the person committed from sustaining an action against the person procuring his commitment.8 23. Acquittal or Failure to Recover; In General.-While a conviction, even though afterwards reversed, may prove that there was probable cause for the institution of the original proceedings, it does not follow that a failure to convict will show a lack of probable cause for the prosecution. The defendant is entitled to an acquittal and discharge if, upon the whole evidence, both of the prosecution and defense, there remains a reasonable doubt of his guilt, although it may appear that there was not only probable cause for the prosecution, but a strong probability of his guilt. And it would tend very much to discourage honest efforts to enforce the criminal laws if every person who instituted a prosecution in which the defendant was subsequently acquitted should for that reason be presumed to have acted without probable cause, and liable in damages for malicious prosecution. The result of a trial often depends upon many contingencies which could not have been anticipated, and a prosecution may turn out to be entirely groundless, although the facts and circumstances known to or ascertainable by the prosecutor at the time it was instituted seemed to point unerringly to the defendant's 4. Dunlap v. Glidden, 31 Me. 435, 52 Am. Dec. 625; Clements v. Odorless Excavating Apparatus Co., 67 Md. 461, 605, 10 Atl. 442, 13 Atl. 632, 1 A. S. R. 409. Butchers' Union Slaughter House Co., 7. Note: 20 L.R.A. (N.S.) 295. 5. Notes: 93 A. S. R. 460; 2 Ann. 25 Pac. 677, 12 L.R.A. 104. 6. Crescent City Live-Stock Co. v. guilt. Accordingly, the great weight of authority and reason is that the mere fact of the acquittal of a defendant upon the trial of a criminal charge is not prima facie evidence of the want of probable cause for the prosecution. The evidence of acquittal is admissible, of course, in showing that the prosecution has terminated favorably to the accused, but it is generally held that its consideration should be limited to that purpose.10 There are, however, decisions to the effect that the fact of acquittal may be considered along with other circumstances in determining whether the prosecution was without probable cause,11 while others go still further and hold that such acquittal prima facie shows want of probable cause, 12 or, what seemingly amounts to the same thing, assert that the showing of acquittal shifts the burden of proof to the defendant to show that probable cause was present.18 In civil actions also it is the general rule that the mere failure to recover does not evidence want of probable cause in bringing suit, since one may well have probable cause for bringing an action in which he is finally defeated.14 If failure to win were prima facie evidence of want of probable cause, a plaintiff might be successful in a suit for malicious prosecution on the mere showing that his opponent had instituted an unsuccessful action against him, for malice may be inferred from the want of probable cause.15 Such failure to recover has, however, sometimes been held to be prima. facie evidence that the original action was groundless.16 In the case of a trial by court martial for disobedience to orders, it has been 9. Donnell v. Jones, 13 Ala. 490, 48 Am. Dec. 59; Kansas, etc., Coal Co. v. Galloway, 71, Ark. 351, 74 S. W. 521, 100 A. S. R. 79; Schott v. Indiana Nat. Life Ins. Co., 160 Ky. 533, 169 S. W. 1023, Ann. Cas. 1916A 337 and note; Grant v. Deuel, 3 Rob. (La.) 17, 38 Am. Dec. 228; Boeger v. Langenberg, 97 Mo. 390, 11 S. W. 223, 10 A. S. R. 322; Griffis v. Sellars, 19 N. C. 492, 31 Am. Dec. 422; Eastman v. Monastes, 32 Ore. 291, 51 Pac. 1095, 67 A. S. R. 531; Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Bekkeland v. Lyons, 96 Tex. 255, 72 S. W. 56, 64 L.R.A. 474 and note; Catzen v. Belcher, 64 W. Va. 314, 61 S. E. 930, 131 A. S. R. 903, 16 Ann. Cas. 715. Notes: 30 A. S. R. 758; 11 L.R.A. (N.S.) 664. 10. Bitting v. Ten Eyck, 82 Ind. 421, 42 Am. Rep. 505; Adams v. Bicknell, 126 Ind. 210, 25 N. E. 804, 22 A. S. R. 576; Downing v. Stone, 152 N. C. 525, 68 S. E. 9, 136 A. S. R. 841 and note, 21 Ann. Cas. 753; Lindsey v. Couch, 22 Okla. 4, 98 Pac. 973, 18 Notes: 26 A. S. R. 155, 64 L.R.A. 476. And see supra, par. 15. 11. Kansas, etc., Coal Co. v. Galloway, 71 Ark. 351, 74 S. W. 521, 100 A. S. R. 79; Sherwood v. Reed, 35 Conn. 450, 95 Am. Dec. 284 and note; Williams v. Vanmeter, 8 Mo. 339, 41 Am. Dec. 644. Note: 18 Ann. Cas. 66. 12. Note: 18 Ann. Cas. 66. 13. Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308, 30 A. S. R. 79; Hanchey v. Brunson, 175 Ala. 236, 56 So. 971, Ann. Cas. 1914C 804. Note: 38 A. S. R. 856. 14. Stewart v. Sonneborn, 98 U. S. 187, 25 U. S. (L. ed.) 116. Note: 93 A. S. R. 460. held that disobedience in fact was probable cause, although such disobedience was found by the sentence of the court martial to have been, in the circumstances, excusable.1 17 24. Nolle Prosequi, Abandonment or Dismissal of Original Action; Award of Temporary Injunction.-It is generally held that the termination of a criminal proceeding by the entry of a nolle prosequi by the public prosecutor establishes no want of probable cause on the part of the person who caused the prosecution to be instituted.18 Nor according to the weight of authority does the abandonment of the prosecution or release of the accused without trial show a prima facie want of probable cause for its institution.19 In some states a provision is made under the statutes for a judgment in a criminal case against the prosecutor for costs, and for a finding that the prosecution was malicious and without probable cause. Such a finding is not competent evidence, in an action for malicious prosecution, to establish want of probable cause, under the rule res inter alios acta.2 20 In contrast to the rule as to the nonprobative effect of an abandonment or dismissal of a criminal prosecution, the voluntary dismissal of a civil action is held to be prima facie evidence that it was instituted without probable cause, and to throw upon the defendant the burden of showing that there was probable cause for bringing the action. Such dismissal is said to be as cogent evidence of want of probable cause as the failure of the prosecutor in a criminal action to make out a sufficient case to satisfy a committing magistrate. Furthermore, the person bringing the action can easily show, as the other party cannot, that the dismissal of the action was not because there was no foundation for it. The other party is powerless to establish the plaintiff's motive for dismissing the case, unless he incurs all the hazard of calling the plaintiff himself as a witness in the action. Since the want of probable cause involves the proof of a negative and requires but slight evidence, the circumstance of dismissal, if unexplained, should, it is contended, establish a prima facie case of want of probable cause. It will not of course be final, and can be rebutted by other evidence. The fact that an order for a temporary injunc 17. Sutton v. Johnstone, 1 Rev. Rep. 257, 1 T. R. 493, 1 Bro. P. C. 76, 1 Eng. Rul. Cas. 765. 18. Yocum v. Polly, 40 Ky. 358, 36 Am. Dec. 583; Boeger v. Langenberg, 97 Mo. 390, 11 S. W. 223, 10 A. S. R. 322. (S. C.) 270, 39 Am. Dec. 123; McIn- Note: 64 L.R.A. 486. 1. Smith v. Burrus, 106 Mo. 94, 16 S. W. 881, 27 A. S. R. 329, 13 L.R.A. Notes: 26 A. S. R. 155; 30 A. S. 59; Kolka v. Jones, 6 N. D. 461, 71 R. 758; 64 L.R.A. 486. 19. National Life, etc., Ins. Co. v. Gibson, 101 S. W. 895, 31 Ky. L. Rep. 101, 12 L.R.A.(N.S.) 717 and note; Cockfield v. Braveboy, 2 McMull. L. N. W. 558, 66 A. S. R. 615. Note: 93 A. S. R. 461, 472. 2. Kolka v. Jones, 6 N. D. 461, 71 N. W. 558, 66 A. S. R. 615. tion was granted to the plaintiff in the prosecution complained of as malicious is not conclusive, but merely prima facie evidence of probable cause, for securing such injunction requires but the showing of a prima facie case. 25. Action of Magistrate.-The effect of binding over or discharge by a magistrate of a party accused of crime frequently arises in the settlement of the question of presence or lack of probable cause. A distinction is made in the showing of probable cause between a mere binding over by a committing magistrate and an actual conviction of the accused party. In the latter case, as has been shown, conviction will generally be held conclusive as to probable cause, in the absence of a showing that it was procured by fraud or false testimony. But the finding of a committing magistrate that an offense has been committed, and that there is probable cause to believe the defendant guilty thereof, is only prima facie and not conclusive evidence of probable cause, in an action for malicious prosecution, brought by such defendant after his discharge, against the complaining witness. On the other hand, the weight of authority is that a discharge by an examining magistrate is prima facie evidence that there is a want of probable cause for the prosecution. There is a clear distinction between such a discharge and an acquittal by a jury. It would be the duty of the jury to acquit the defendant, if on all the evidence there was a reasonable doubt of his guilt, even though they might believe he was probably guilty of the crime. But the magistrate would violate his duty if he discharged the accused, when the evidence produced the belief that he was probably guilty of the crime. He acts directly on the question whether there is a probable cause for the prosecution; and, if he discharges him, it must be because, in his judgment, there is no probable cause for the prosecution. Discharge by a United States commissioner, sitting as a magistrate, has the same effect. Where the magistrate is empowered 3. Burt v. Smith, 181 N. Y. 1, 73 9, 136 A. S. R. 841, 21 Ann. Cas. 753; N. E. 495, 2 Ann. Cas. 576. 4. See supra, par. 22. 5. Wells v. Parker, 76 Ark. 41, 88 S. W. 602, 6 Ann. Cas. 259 and note; Luke v. Hill, 137 Ga. 159, 73 S. E. 345, 38 L.R.A.(N.S.) 559; Ross v. Hixon, 46 Kan. 550, 26 Pac. 955, 26 A. S. R. 123 and note, 12 L.R.A. 760; Griffis v. Sellars, 19 N. C. 492, 31 Am. Dec. 422. 6. Davis v. McMillan, 142 Mich. 391, 105 N. W. 862, 113 A. S. R. 585, 7 Ann. Cas. 854 and note, 3 L.R.A. (N.S.) 928 and note; Griffis v. Sellars, 19 N. C. 492, 31 Am. Dec. 422; Downing v. Stone, 152 N. C. 525, 68 S. E. Lindsey v. Couch, 22 Okla. 4, 98 Pac. 973, 18 Ann. Cas. 60; Eastman v. Monastes, 32 Ore. 291, 51 Pac. 1095, 67 A. S. R. 531; Madison v. Pennsylvania R. Co., 147 Pa. St. 509, 23 Atl. 764, 30 A. S. R. 756 and note; Barhight v. Tammany, 158 Pa. St. 545, 28 Atl. 135, 38 A. S. R. 853; Fox v. Smith, 26 R. I. 1, 57 Atl. 932, 3 Ann. Cas. 110 and note; Noblett v. Bartsch, 31 Wash. 24, 71 Pac. 551, 96 A. S. R. 886; Bigelow v. Sickles, 80 Wis. 98, 49 N. W. 106, 27 A. S. R. 25. Note: 64 L.R.A. 481 et seq. 7. Lindsey v. Couch, 22 Okla. 4, 98 Pac. 973, 18 Ann. Cas. 60. to hear and determine the case, then the result of discharge by him should be in accordance with the general rule no evidence of want of probable cause. In such a case the prosecutor must prove not simply that the defendant is probably guilty-which would show that there was probable cause for the prosecution-but he must prove that the defendant is guilty beyond a reasonable doubt. And it is clearly unreasonable to hold that the failure of the prosecutor to make out such a case is prima facie evidence of want of probable cause in instituting the criminal proceeding. An acquittal may result from some technical error or irregularity, or other circumstance having no bearing on the question of probable cause for the prosecution; the complainant may be unable to produce a material witness, and many other facts may exist which, while having a bearing upon the action of the court, have no bearing whatever on the question of probable cause.8 Even where the question to be determined by the magistrate is only that of binding the accused over or discharging him, the authorities are not unanimous that a discharge is prima facie proof of want of probable cause. It is pointed out that at the hearing the accused has the benefit of all explanatory circumstances which have been discovered since the charge was preferred against him, and sometimes of such evidence as he can procure either to explain or contradict that upon which the prosecutor was authorized to act. Furthermore it would seem that the prosecutor might have been greatly influenced in his action by information and circumstances which, while such as would justify a reasonable man in acting, would not be such as could be introduced as legal evidence at the trial of the accused because of some technical rule of evidence or procedure. Some authorities have therefore flatly denied that a discharge by the committing magistrate is evidence of want of probable cause," while in other jurisdictions the rule has met with some modifications, and the nature of the proceedings in which the discharge took place has been held to qualify the rule. Thus it is said that if the discharge resulted from a mere abandonment or voluntary dismissal or discontinuance of the prosecution, and from no hearing and no examination as to the charged offense, then such a discharge or dismissal, standing alone, is no evidence of a want of probable cause. in the action for malicious prosecution. If, on the other hand, the discharge resulted from a hearing of the charged offense-that is, if, on the evidence adduced by the prosecutor or the state, the accused was discharged because of a want of evidence to induce the magis 8. Fox v. Smith, 26 R. I. 1, 57 Atl. 932, 3 Ann. Cas. 110; Catzen v. Belcher, 64 W. Va. 314, 61 S. E. 930, 131 A. S. R. 903, 16 Ann. Cas. 715. Note: 7 Ann. Cas. 859. 9. Davis v. McMillan, 142 Mich. 391, 105 N. W. 862, 113 A. S. R. 585, 7 Ann. Cas. 854, 3 L.R.A. (N.S.) 928 and note. Notes: 26 A. S. R. 155; 64 L.R.A. 484; 3 Ann. Cas. 114. |