BLUNKh. ATOHISON, 'T. &S.
v.A1'cHlsON, T. & S. F. R. Co.
w: D.Mi880wri; w: D.
,1. ,MALICIOUS, PaoSEOUTION-WREN.
the tiling of an origi,nal complaintfor criminal prosecution. those who instituted the prosec\ltion learn facts shQwing the innocence of the accused,theyare not liable for malicious prosecutiohfor-merely withholding such information from the prosecuting attorney. as under the statutes of Kansas the ClloSll is then in the hands of the attorney; but they are liable if they still insist'upon. urge, anei demand the prosecution of the accused.
'." SDl:E-MAttcE":"WHAT CONSTITUTES.
SAME-PROBABLE C A U S E . '
Where robbery and murder have been committed, an,d those atIected thereby,on being informed by a convict in a penitentiary that he, with certll.in others, committed the' crimes, find on investigation that the details of the facts stated by, their informant aresuhstantially true, and from the confession and the,details.they entertain an: honest and strong suspic!on that thepersollsnamed were guilty, probable :cause exillts for 'prosecutIOn of those iniplicatedby the statement of the 'convict. ' COUNSEL. " " If one injutEld;by a (ilrime discloses all the facts tha,t he knows, arthat by the exercise ,of reasonabl6:care, he can obtain, honestly and fully to counsel, and the latter advises 'tHat' iluch facts make out a case for prosecution of, suspooted 'persons, :the injured 'person ,is justified in institllting .the prosecution. 1 SAME-RIGHTS OF ACCUSED. , ' . ' ," , " ' , Tqe lluspected persons need not be ,informed or led from the in'vestigatio'ns ,t:O believe, before the prosecution' is iJistituted, that they are accused 'of the . '", . . , Thll,lMasure :of damages . fQr malicious prosecution ill the expense oltha defeRi!e, the ,value of the time lost by the accuse4, and' a reasonable compen;;'sation'f0lUnjury to reputation. . ' .
SAME-DAMAGES,:.. .' , . '
At Law. Abtion by A.Blunk against ;the Atchison, Topeka & Santa Fe road,Company,fordaniages for maliCious prosecution. Robin8Ofl,& Harkless, for plaintiff. McCrary and Gardener Lathrop, for defendant.
charging jury.) The case l which has be,en tried befoie' tori'with very full detail offacts, is oae of importance, not merely totlre ,partills involved herejbut also to the general public, and by reason .of that fiwti it deserves at your hands the most careful consideration. Both sides have presented the testimony fully and fairlYiand it certainly is, a: pleasure to try a case when His tried, as this has been,Bu well, -and so pleasantly; by counsel. . At the very outset I want to notice and
· 1 Respebting of counsel as' shbwing probable cause, and the neoessity of dis;cl08iug,aU; to an ac'tion fOr malicious prj)sequtlon, ,l!ee'.faddpok V" Wlltts, (Ind.) I;,i. E. 018; Cuthbert v. Gallowlly,ll5 Fed.:a.ep; 4tiIl; , Notrelv. V'ogel,' tMinn;)38 'N.' W. 'Rep. 705, and note. ., " '. . " , ,
comment for a moment upon an obvious infirmity in our laws-at least, so it strikes me. One of you is entirely innocent of crime. Some one files a complaint; causes your arrest; you are tried and acquitted. In making your defense you have spent time and moneYi possibly have been incarcerated in jail; and yet, after your perfect vindication, by a jury of your countrymen, there is no provision for any .compensation to you for the time and 'money that you have lost. Now, as I have often had occasion to say. I think that this is an injustice; but it is an injustice that we cannot remedy-only tlie legislature can. The only remedy which a party may have, in a case where he has been unjustly charged with a crime, is when the prosecution is one which comes within the legal definition of a malicious prosecution; and then he can recover from the prosecutor fair and reasonable damages. In this case I may have occasion to comment upon the teo;timony somewhat, and I may express an opinion as to the effect of this or that portion of testimony, or as to the proof of this or that fact. If I do so, I want to say at the ontset that my opinion upon a question of fact does ,not control. You are to decide all questions of fact. And I want to say another thing, too, and that is; that we are to try this case upon the testimony that we have, and not upon that which might have been, or that we guess might have been, offered. If a witness known to have some conriection with the circumstance of this c8:se is not present, you may not guess that he would have testifi,ed,so and so if he were present. Our inquiry is limited to the testimony that we have,and we cannot speculate upon what might have been. I observe again that we are not. here to try the question of the guilt or innocence of this plaintiff of the train robbery and murder at Coolidge. That is not the question before us. If it were, I think I should have no . hesitation in saying that, conceding all that you uiay in reference to suspicions, there are no sufficient facts before you that would justify you in saying that he was connected with that robbery. I observe again that the proceedings which were initiated by the complaint filed before thejustice of the peace, followed up by the requisition and information, are at an end. That prosecution is finished. Again, if not conceded, it is, I think, a fact beyond dispute from the testimony that the prosecution of this plaintiff, Blunk, was initiated by the defendant-railroad company. It caused, practically, those proceedings to be commenced and prosecuted. And in that respect I' may also observe that when a crime likethe attempted robbery of the train at Coolidge, and the murder of the engineer and the wounding of the fireman, has been committed, then common decency and every man's sense of justice demands that the comyany whose property has thus been threatened, and whose employe has thus been killed, should make every fair and reasonable effort to bring . the criminal or criminals to justice; and that it is not to be taken as any evidence of misconduct on the part of the railroad company that it has used its employes and spent its money in an effort ,to ferret out and bring to justice the criminals. Every man, for that matter, owes a duty to, society to do what he can to ferret ollt and punish crime; and when
BLUNK II. ATCHISON, T. &
F. R. CO.
relations exist that existed between this defendant and the man who waa killed, there is a more imperative duty on it to do what it can in that direction. While that is true, of course it also is true that in prosecutipg its inquiries and making its efforts it is not at liberty to act wantonly, to act with malice, to act in disregard of the rights of other8. All that it may do,-and it is that-which -it ought to do,-is to make fair and reasonable efforts to ferret out and prosecute the criminals. It being, therefore, not a question of whether that prosecution is ended, nor a question whether this plaintiff was guilty of the crime charged in that prosecution, the inquiry naturallyariseR, what is this case, and what is it that you are to try? . In the technical language of the law, this is a case in which the defendant is charged to have maliciously prosecuted this plaintiff-" maliciously prosecuted;" and the elements of the case, as well settled, are-First, it must appear that there was no probable cause existing at the time of the commencement of the prosecution for its commencement; and, secondly, that it was a prosecution with malice. Those are the two ingredients. As frequently stated, there must be a want of probable cause, and there must be malice. Those are the questions you are to try-whether in this prosecution this railroad was actuated by malice towards this plaintiff, and acted without any probable cause to believe him guilty. The question of what constitutes probable cause is a. question for the court to settle; What the facts are the jury are to determine; but what constitutes probable cause is for the court to determine. It appears in this case that, without any solicitation or any suggestion from the defendant, news was communicated tc. the officers of the company that a convict in the Missouri penitentiary knew something about the Coolidge train robbery, and was ready to conless. On the strength of that information the ordinary officer of the defendant proceeded to the Missouri penitentiary, and interviewed that convict. From him he got a statement in writing, written partly by the agent of the company and partly by the convict. That statement, according to the testimony, was a confession of his own-that is, the convict's own-connection with the crime. More than that, it detailed the circumstances immediately preceding and subsequent to the crime; named the three parties engaged in it, ano detailed some preliminary matters, then mapped out their course of travel to Coolidge and return, giving individual facts connected therewith. Now, I say to you that if a reputable citizen -if one oryou, or any man of known integrity-makes an affidavit in which he details his own knowledge of a crime, and a person acts upon that affidavit, he acts with probable cause in instituting a prosecution for the offense. But where a person like this convict, of confessed -criminality,-confessed both by the adjudication against him and by his own confession in this statement,-makes a statement in respect to crime, ' -not merely in reference to himself, but implicating others, then common prudence requires that the truth of that statement should be investigated before the persons named in it are charged with crime. If, however, in a confession from a man himself a convict,-from a man 'Confessing his own criminality and charging others with parti<;lipa-
tion,-the confessor makeS a detatled of factBpreceding, attending, and following the crime, and the party to .whom thatconfession is made investigates those particular statements, and finds that they are substantially accurate, and acts upon that information thus verified, by personal in'Vestigation 'and information,' he is acting upon' probable caUse. Take,the case before us. If Mr. Higgins-after receiving this statement, which has been read to you, detailing the place from which they E:ttarted,the prior relationships between the convict, Mr. Blunk, and the places they visited on their way to Coolidge, .what took place at Coolidge, the places they visited in the vicinity of Coolidge and on thElreturn"":""if Mr. Higgins, taking that statement as presented tO,him, implicating the convict himself, and Mr. Blunk and Waller, went over and verified so far as waFlpossibJe the details of the information thus (',()nveyed1andfound that the details were oorrect,--details which could not have been-known exceptby'a pa!rty who was cognizant of the offense and participated in the crime,"""'-then he is justifiedin acting upOn that confession: as a true statement, or at least as probable'causefor further prosecution: ; In this respect I quote the language of a case cited by the counsel for plaintiff from Cole v.Curti8, 16 Minn. 182, (Gil. 161,)itself a quotation from Hi}.' Torts l " ' "Probable cause' for instituting hiproseclItionis beld to be such.a state of facts known toartd inftuencingtbepl'dSecutor as would lead a man of ordinary caution and prudtlnce.aot'ing conscientiously. impartially, reasonaOly. and the party's knowledge, to believe or without prejudiee.upon the factI!! entertain an honest aud strong suspipipn that the p,l:r80n acculjed is, guilty." Now, if the defendant, through its agent, after this investigation, with this sworn statement of the convict;, found that the details of the facts therein stated were substantiaUy:tme, and from the possession of that knowledgEl"-'-thatisl from the possession of the confession 'and the verifi. an honest and cation of the details :oy strong suspicion ,that .the convict :and the persons named as assistants with him were the three guilty persons, then the action was with probable cause, and the plaintiff has failed to'make out his It is not necessary, where an investigation' of this kind is started, that the persons Buspected or accused should, before the prosecution is instituted. be notified of the accusation.' .It is not even necessary that the persons investigating the ma.tter shoUld so fu.rcontinue their investigations as to put the accused upon notioe of an investigation; or lead him to believe that il.u investigation is being had; because,forthe obvious rea. son that, .if he be guilty, the moment he knows or suspects that an investigationis,being had ,he disappears. Those investigations are fairly and reasonably conducted if they.areconducted up to the point where .thepossibilityofnotioe to the accused u,1ay arise. ..' l ' It is also necessary, ina case' of tbjs kind, that the defendan t in the oivitaction""'-O:ile pending lilte!this..-,shall have acted maliciously. A satisfactory definition of that: term may not be easy. Of course, it covers a case where a prosecutor has ali ill-will against theacoused; ,as if, for I!had. a:pet.sonal grudgeagaipstone of you, and should, by
reaFlono'£ thatpersonal.grtidge,fUea oompmint,agllinst you. Thereiyou causee that I have malice,-I have grudge. But the' law goes a little ful:therthan that. It is not always necessary to prove such personal, aetual and grudge by reason, of past trouble. A jury may .sometimes infer from the absence of anYiprobable cauSe that there' was malice, even where the testimony fails to show any prior trouble, difficulty, ill.will, or grudge. Wherever there isa wanton, agross', reckless disregard of the rights of another, as where confessedly there is no excuse forH,r-oo reasonableground,-and a complaintisfiled, then, although there may be 00 direct testimony as to any prior trouble, ill-will, or grudge, the jury may be justified in firlding that the action was Hcious. But, while that is true, yet the jury must be satisfied from 'the testimony tbatthe tbing was maliciously done. In this case the ques-. tion for you to consider in this respect is whether this railroad company, or any Qrlts officials, had any feeling, any malice, any desire to prosecute or punish this plaintiff. Was it to wrong or injure him in any way that this prosecution was instituted? Or was it simply from the beliefa belief, mistaken though it may be, that he was the guilty man? If they acted from probable cause, and without any personal feeling .towards him. without any desire to wrong .him, then there is no malice shown as against the company defendant. !tis further insisted by the defendant that whatever information they had they presented to counsel,-their own counsel, the attorney general of the state of Kansas, and the county attorney of lnnney county,-&nd that all of them agreed that the facts within their: knowledge pointed to and justified the prosecution ofthisplaintiff. Now, if a party in a case like this discloses all the facts that he knows, or that by the exercise of reasonable care he can obtain, honestly, fully, and fairly, to counsel, and that counsel advise him that the facts thus stated make out a case, then he is justified in acting upon that advice. Thus, for instance, one of you may suspect thatA. has committed a crime. You make inquiries,all that come within your power reasonably to make,-and you find this fact, and ,that, and another, and you go to the prosecuting attorney, and tell him these facts, and he says they indicate that the person is guilty of crinle, and on the strength of that you file a complaint. The matter is investigated, the case is tried, and it turns out that you were mistaken, and that the defendant is innocent. No cause of action arises against you. You have gone to the proper party; you have told him all that you know, lind all that by the exercise of reasonable care and diligence you could ascertain; and, having made that disclosure. although you were mistaken, although perhaps his advice was incorrect, yet you are shielded from liability. Now, this defendant says that all it knew, all the facts withinits knowledge, and all that it could with reasonable care ascertain, were communicated to its own counsel,:to the attorney general, and to the county attorney of Finney county. Not merely that; itsays that the attorney general, on his. own motion, investigated. so far as he CQul!l;by ccnversation with the confessor .and convict, the accusation;; and that 'hey all advised that thete .was enough: to justify the comrnence-
ment of the prosecution. If that be true, if nothing was withheld, if full disclosure was made, if all was done honestly, conscientiously, and fairly, and all the facts that the company did have within its knowledge, or could by the exercise of reasonable care ascertain, were disclosed to . these counsel, and they advised the prosecution, that is a perfect answer to this suit. ' On the other hand, it is insisted by the counsel for the plaintiff that, whatever may have transpired before the original filing of the complaint at Garden City by Mr. Black, after that was filed months elapsed before the information was filed upon which the plaintiff was finally to be tried, and that the defendant company in the interim between 'the original commencement and the filing of the information, if it did not have before, had full and satisfactory information of the innocence of this plaintiff, and that, notwithstanding that information, it insisted upon the continuance of the prosecution, and caused the information to be filed. The law in that reRpect is this: By the statutes of Kansas, whenever a '" criminal complaint is filed, the county attorney takes charge of the prosecution. From that time until its termination in the trial court it is wholly within his control. It does not lie in the mouth of the person who makes the complaint to say what shall be done, or when it shall be done, thereafter. The law provides that, after the filing the complaint before the justice of the peace, the preliminary examination and binding over for trial in the district court, at or before the commencement of the next term of the district court, the county attorney shall investigate the matter. If he finds satisfactory reasons for discontinuing it, he shall file a statement of those reasons with the judge of the district court, who determines the propriety of continuing the prosecution. If he finds no such satisfactory reasons for its discontinuance, then it is his duty to file the information; and the moment the criminal proceeding is initiated by the filing of the complaint, the matter from that time remains absolutely in the control of the county attorney, except as he may be directed by the court. So that the mere fact that after the prosecution was initiated the railroad company was advised of matters which showed the innocence of the plaintiff-that itself would not justify you in holding the railroad company responsible in this case; that is, provided it was not responsible for the original filing of the complaint. It is true, however, that while the absolute control of the case remains with the county attorney, if, after the filing of the original complaint, the original prosecutor-m this case the railroad company -' becomes advised of facts which clearly show the innocence of the accused, and, notwithstanding the possession of the knowledge of those facts, it insists, and urges, and presses the prosecution of the case further, it may held liable. Its silence, its mere withholding the information, its mere waiting and letting the case take its course, give no cause of action against it; but if it insisted upon, and urged and demanded, a continuance of the prosecution' when it knew that the party was innocent, then it may still be liable for' an action of malicious prosecution. But in order to prove that it must be shown that it was fully advised of the innocence of the accused, and
BROOKS 11. M'COMB.
inat, notwithstanding its full possession of information in that respect, it insisted upon, urged, and demanded the prosecution of the accused. Now, in this case the question is whether there was any such information communicated. to the railroad company; whether there was anything more than a doubt thrown upon what information had been received bafore; and whether, in the possession of such information as it had, the continuance of the prosecution was at its urgency and insistence. If you find for the plaintiff, the question of course arises, what is his measure of damages? and in respect to that the law is this: Whatever he may have paid out for counsel fees, for expenses in defending himself against the suit that was wrongfully brought against him, and whatever may be the value of the time that was consumed in that defense; and, beyond that, whatever damage may have been done to his reputation by the initiation and prosecution of this unjust charge,-are to be considered in determining the amount of his damages. Of course, so far as the amount of money he may have paid out jor expenses and counsel fees is concerned, that is a matter easy of calculation, as is also the value of his time. Those are matters of mathematical calculation. So far as the question of injury to his reputation-damages to his reputation-is concerned, there is r.a mathematical rule by which that can be determined. It is submitted to the good sense and fair judgment of the jury,-considering all the circumstances of the case, the man he is, his past life, his own character,-to determine as to how much he has been damaged by this unjust accusation.
BROOKS 'IJ. McCOMB.
(Oifoeuit Oourt, D. Kansas. March 25,1889.)
WILLB-FoRBIGN-RmCORDING-DoCTlUNE OF RELATION.
Compo Laws Kan. 1881, C. 117. § 29, provides that "no will sball be effectual to pass real or personal estate, unless Itsball bave been dUly admitted to probate, or recorded, as provided in this act. " Chapter 37, § 146a, provides that powers of sale conferred upon executors, etc., by foreign wills, shall, as to lands situated in Kansas, be as valid there as in the state where the will was made, "provided that at the time of such conveyance (under the power) a copy of such will shall have been recorded in the office of the probate court in the county in which any land so conveyed is situated. as anthorized by" chapter 117, § 24. Held, that where a foreign executor conveyed land in Kansas, under a power of sale in the will, before recording the will, but no rights of third persons intervened, the subsequent recording related back to the date of the conveyance, and made it valid.
At Law. Ejectment by Anna L. Brooks against John McComb. Hallowell &; Hume, for plaintiff. Campbell &; Dyer and SlU88 &; Stanley, for defendant.
. FOSTER, J. 'The plaintiff brings ber action of ejectment against said defendant to recover the possession of lots 34 and 36 on Waco street in