Stansbury v. Luttrell

Parke, J., delivered the opinion of the Court. The appellee, Warren Lee Luttrell, brought an action at law for malicious prosecution against the appellant, John E. Stansbury, and his co-defendants, II. Melvin Bull and Lester L. Stevens, for having falsely and maliciously charged, before a justice of the peace, the appellee with larceny of ⁵⁵⁶ three trees, and having procured the issuance of a warrant and the arrest of the appellee until he was released on bail, and thereafter his indictment for such crime, with the result that the appellee was acquitted. The outcome of this action was a judgment against the appellant, after the jury had been instructed that his co-defendants were not liable.

On this appeal the single exception is to the rulings of the trial court on the prayers; and it is our judgment the only question requiring consideration is the rejected prayer to the effect that the evidence was legally insufficient to establish that the appellant had acted in the prosecution without probable and reasonable cause. If there be probable and reasonable cause for the criminal prosecution at the time it was begun or participated in by the prosecutor, then an action for malicious prosecution will not lie, although the prosecutor may have been actuated by malice (a.), the accused may have been actually innocent (&), or acquitted after trial (c). As probable cause is such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, as to warrant a cautious man in believing the party accused to be guilty, it follows that if the facts and circumstances known to the appellant at the time he began or participated in the prosecution were so convincing as of themselves to afford a cautious man reasonable ground to believe that the appellee was guilty of the crime charged, then the prosecutor would not be liable for procuring or assisting in the prosecution of the accused for such crime (JF). Hence, the real motive of the prosecutor, the actual innocence of the party charged, or his acquittal, becomes immaterial, if the accused be not able to meet the burden (e) of establishing by competent evidence the absence of probable cause in his prosecution.

The legal sufficiency of the facts and circumstances relied upon to constitute probable and reasonable cause is a question of law. If such facts and circumstances exist and are proven, without conflict or contradiction, by competent evidence, the question is one of law for the court, but if these facts and circumstances are ⁵⁵⁷ improbable or are the subject of denial or controversy, their existence and truth are questions for determination by the jury, and then probable cause is said to be a mixed question of law and of fact (f). These are familiar principles which find many exemplifications in the decisions, (a) Goldstein v. Rau, 147 Md. 6, 13 ; Dorsey v. Winters, 143 Md. 409 ; Jordan v. Piano Co., 140 Md. 207, 213 ; Bishop v. Frantz, 125 Md. 183, 198 ; Lasky v. Smith, 115 Md. 370, 374, 375, 376 ; Flickinger v. Wagner, 46 Md. 580, 603 ; Medcalfe v. Brooklyn Life Ins. Co., 45 Md. 198, 204 .

(b) Jordan v. Piano Co., 140 Md. 207, 209, 210 ; Chapman v. Nash, 121 Md. 608, 612 ; Moneyweight Co. v. McCormick, 109 Md. 170, 183 . (c) Chapman v. Nash, 121 Md. 608, 617 ; Camp bell v. Balto. & O. R. Co., 97 Md. 341, 345, 346 ; Bowen v Tascoe, 84 Md. 497, 499 . (d) Goldstein v. Rau, 147 Md. 6, 13 ; Dorsey v. Winters, 143 Md. 399, 409 ; Pessagno v. Keyes, 143 Md. 437, 441, 442 ; Jordan v. Piano Co. 140 Md. 207, 209, 212, 213 ; McNamara v. Pabst, 137 Md. 468, 474, 475 ; Bishop v. Frantz, 125 Md. 183, 190 ; Mertens v. Mueller, 122 Md. 313, 320 ; Moneyweight Co. v. McCormick, 109 Md. 170, 183, 184 ; Bowen v. Tascoe, 84 Md. 497, 500 ; Johns v. Marsh, 52 Md. 323, 335 ; Boyd v. Cross, 35 Md. 194, 197 ; Cooper v. Utterbach, 37 Md. 282, 317 ; Stansbury v. Fogle, 37 Md. 369, 384 . (e) Goldstein v. Rau, 147 Md. 6, 13 ; Dorsey v. Winters, 143 Md. 399, 408 ; Jordan v. Piano Co., 140 Md. 207, 209 ; Sappington v. Fairfax, 135 Md. 186, 188 ; Bishop v. Frantz, 125 Md. 183, 190 ; Chapman v. Nash, 121 Md. 608, 611 .

(f) Boyd v. Cross, 35 Md. 196 , 197; Garvey v. Wayson, 42 Md. 179 , 187, 188; Thelin v. Dorsey, 59 Md. 539, 545, 555 ; Medcalfe v. Brooklyn Life Ins. Co., 45 Md. 198, 204, 205 ; Hooper v. Vernon 74 Md. 136, 139 ; Central Ry. Co. v. Brewer, 78 Md. 394 ; Dorsey v. Winters, 143 Md. 409 ; Goldstein v. Rau, 147 Md. 6, 13 ; Jordan v. Piano Co., 140 Md. 210 ; Chapman v. Nash, 121 Md. 608, 617 ; Lasky v. Smith, 115 Md. 370, 376 ; Campbell v. Balto. & O. R. Co., 97 Md. 341, 344, 346 ; Bowen v. ⁵⁵⁸ Tascoe, 84 Md. 497 ; Central Ry. Co. v. Brewer, 78 Md. 394, 408 .

For the purpose of determining whether, on the whole evidence, there was no legally sufficient testimony of the absence of probable cause, the court will assume the truth of all the facts tending to support the plaintiff’s case and consider such facts in connection with “such other facts appearing in the record which have been proved and not contradicted or denied by the plaintiff.” Chapman v. Nash, 121 Md. 608, 610 . The application of this rule to the case at bar presents these facts. A large 'tract of land called “Pleasant Plains Farms” was owned in common by the Ellsworth Apartments, Inc., and the J. E. Stansbury Company, Inc., which had reserved practically all of the land fronting on the waters- of the Chesapeake Bay and its tributaries for development and sale as building sites, and had rented the remainder for agricultural and dairying purposes to Harry W. Elliott, who had sublet the premises- to one George T. Shelton. The lessee was bound by the lease to surrender the premises at the end of the term in as good order as at its- beginning, and not to make any repairs other than those which, during the term, the lessors had first agreed could be made.

These stipulations bound the sub-lessee, who, notwithstanding their inhibition and without the prior -consent of the lessors, requested the appellee, who operated a saw mill which was located on a public road at a point less than half a mile from where the highway entered the mentioned tract, to cut and haul oak, chestnut and poplar timber from the land, saying that he needed the chestnut boards for hotbeds, the poplar for building purposes, and the oak for stable bottoms. Despite the appellee’s knowledge that the sub-lessee Shelton was a tenant, the appellee went with two- of his men to- the farm and inquired where the timber was to- be felled, and the tenant Shelton directed him to cut the growing timber back of the- peach orchard. When the appellee asked the tenant to accompany him to- the place of the cutting, the tenant did not comply with this request, saying that he was in a hurry to- go to ⁵⁵⁹ Annapolis, and the appellee thereupon instructed his men, one of whom was familiar with the ground, to go to the place indicated and to do the cutting. The men, and some other fellow servants who later joined them in their labor by command of the appellee, felled the trees and cut all, except one oak which proved to be not sound, into logs, of twelve, fourteen, and sixteen feet, which were lengths suitable for sawing for building purposes, and then hauled all except the unsound oak tree to the mill, where all but one log were sawed into boards which were divided equally between Shelton and the appellee.

The men worked at cutting two days and cut down two led oaks, one pin oak and three or four poplars, which had all stood on the portion of the tract that was not included in the lease. Shortly after the happening of these things, the appellant, the president of the corporation called the <T. E. Stansbury Company, Inc., and H. Melvin Bull and Lester L. Stevens, officers of the other corporate tenant in common., heard that timber was being removed from the property. A visit to the tract confirmed the report, and an investigation was begun which implicated Shelton and two colored men as the guilty parties. The appellant went to. the state’s attorney of Anne Arundel County, and laid this information before him, and asked his advice.

The state’s attorney prepared an outline of the charge to be made, and instructed the appellant to go with it to a magistrate and there make the suggested information against the tenant Shelton and the two colored men. Tins the appellant did, and warrants for the arrest of the three parties were issued, but no charge was preferred against the appellee, and his name was not then mentioned in connection with the crime alleged. When the¡ writs were put in the hands of the sheriff, he called up the appellee and informed him that he had warrants for the arrest of two of his laborers charged with stealing lumber off of Pleasant Plains Farms, and that the trial would be on the following Monday morning. This hearing was four or six weeks after the trees had been cut down and, although not summoned, the appellee attended because the charge was brought against his servants. ⁵⁶⁰ The state’s attorney, the appellant, and his business associates, Bull and Stevens, the appellee, the accused men, and others, were present at the hearing.

Shelton and the two colored men, who had been arrested, testified that the workmen of the appellee had gone upon the premises, cut down, removed, and sawed the trees by command of the appellee, who was with his men while at work on the premises on the second day. After this testimony, the appellee voluntarily and openly stated to the justice of the peace that what his men had thus done was by his direction. When the appellee made this declaration, which was an assumption of responsibility for the acts of his servants, the state’s attorney suggested that the servants be discharged, except as witnesses for the State, which was done. An information against appellee was then prepared under the supervision of the state’s attorney and sworn to by the appellant.

As this information is not in the record, its contents are not known, but the warrant recited that, “upon information and oath” of appellant the appellee was “charged with larceny of timber and destruction of timber on Pleasant Plains Eaims, 3rd District of Anne Arundel County. Timber cut in February, 1925”; and the magistrate’s docket notes a charge of “larceny of timber and destruction of timber on' Pleasant Plains Farm.” The accused was asked if he desired to make a statement, and at the same time was warned that anything he might say would be used against him. He made no further statements, waived a hearing and gave security for his appearance at the April term of the Circuit Court for Anne Arundel County, wherein he was later twice indicted upon the testimony of the appellant and eight other witnesses, who were the same on each indictment. The first indictment charged, in various forms, a violation of the statute making it a misdemeanor for