Gittinger v. McRae

Boyd, J., delivei-ed the opinion of the Court. • Hie appellant instituted an action for malicious prosecution against the appellee and others in the Supreme Court of Baltimore City, but during the progress of the trial the other defendants were dismissed, and at the conclusion of the plaintiff's testimony the Court granted an instruction that there was no legally sufficient evidence to connect the appellee with the arrest and pi'osecution of the. plaintiff-complained- of, and that therefore the plaintiff was not entitled to recover against the defendant. The only question brought before us for review is whether or not that prayer was properly granted. The charge against the appellant was obtaining, by means of false pretences, some liquors valued at $200.00, the property of Broderick, McRae & Co., of which firm the appellee was a member. The warrant was sworn out by F. C. Harman, a salesman of the firm, and the names of Harman and the appellee were given to the Justice of the 'Peace as witnesses.

The appellant was arrested about hine o’clock in the morning, and held at the station-house until three o’clock in the afternoon, at which time there was a' ■hearing, which resulted in. his being held for the action of ⁵¹⁵ the Grand Jury, which dismissed the case. At the hearing Mr. Harman, the appellee, Mr. 'Myers', a bdokkeepermf the firm, and Mr. Bowen; an-attorney at law; were present. The officer who made the arrest testified that after he took the plaintiff to the station-house, “ he went around and notified the people ' of the hearing, to be present at three o’clock.” The Justice said, in explaining the practice in such cases, when the prisoner is apprehended “ they send notice to the witnesses to be present at a certain time.” Whether or not a regular summons was isssued for the appellee as a witness does not clearly appear, as the only evidence on the subject is that stated above. The appellee, his salesman and his bookkeeper' testified at the hearing and there could be no question about the fact that the appellee knew that the appellant was charged with obtaining goods from his firm by means of false pretences.

If it be conceded that the testimony was not sufficient to show that the appellee did not appear voluntarily, and that the inference is that the officer meant he summoned the witnesses when he said “ he notified the people of the hearing,” there was at least some evidence of his voluntarily participating in the prosecution. The plaintiff testified that when he went into business he asked the appellee for a line of credit, and he referred him to Mr. Harman; that the appellee told him he could have what he wanted ánd turned him over to Mr. Harman; that he said nothing to induce him to give him credit; that after he went out of the business he had a conversation with the appellee, which appears in the record, as follows : “ Mr. McRae said, ‘ You treated me very wrong,’ and he went on in regard to the whole thing; plaintiff told him it was impossible for him to pay every one when he was closed up, and the place taken from him and he was kicked out; well, Mr. McRae said to him, why didn’t you come to me, I probably would have helped you.” He also said he met Mr. Harman on the street, and he, Harman, asked him if he had gotten his letter, and he explained to him the circumstances he had related to Mr. ⁵¹⁶ McRae. Harman said he would give him until three o’clock to be at his office, and he told him he would not be there. The next thing that took place was the arrest.

The letter spoken of was signed “ Boderick, McRae & Co. Myers.” and reads as follows: “ You are requested to call at our place of business at once in reference to matters of which you are cognizant. A prompt compliance will save you much trouble and annoyance.” The appellee not only did not repudiate or object to the prosecution commenced by the warrant sworn out by his.salesman for obtaining goods under false pretences from his-firm, but, as we have seen, the evidence of the witnesses, of which he was one, resulted in holding the appellant for the action of the Grand Jury. It is true that “mere passive knowledge and consent to the acts of another is not sufficient to make a party liable, yet voluntary aid and assistance undoubtedly will.” Stansbury v. Fogle, 37 Md. 383 . It must be remembered that Mr. Harman, who swore out the warrant and gave the appellee’s name to the Justice as one of the witnesses, was not