Fitzgibbon v. Brown

The defendant, acting upon positive infor*174mation received from a reliable source, that the plaintiff had been engaged in a riot, included his name with those of others in a complaint made by him against certain individuals charged with that offense. The plaintiff, upon the hearing and examination before the magistrate issuing the warrant, was discharged, and thereupon brought this action for malicious prosecution.

The defendant, to show probable cause, proved that he had received positive information from a man named Durgin, of the plaintiff’s participation in the alleged' riot, and that in consequence of such information he made his complaint. The court instructed the jury that “ if they believed defendant was informed by Durgin that the plaintiff was in the riot, and Durgin was a reliable man, and made the communication to the defendant positively and unequivocally that the plaintiff was one of the rioters, it would be probable cause for including him in the prosecution.’’’ This instruction was correct, and in conformity with the authorities upon this subject. It is not required that every complainant of his own knowledge should swear to the truth of every fact alleged in his complaint. If it were so, effective criminal proceedings would be at an end. The complainant may, and must in many cases act upon statements made by others, and if their statements are positive and unequivocal, and they are reliable, he must be regarded as having probable cause for proceeding criminally against those alleged to have been guilty of the commission of a criminal offence. French v. Smith, 4 Kernan, 363. The positive and unequivocal assertion of guilt by a reliable man, as of his own knowledge, would reasonably induce belief on the mind of even a cautious man, and in case of crime, well grounded belief should be followed by correspondent action. Probable cause does not entirely depend on the actual state of the facts, but upon the honest and reasonable belief of the prosecutor. Bacon v. Towne, 4 Cush., 217; James v. Phelps, 11 Ad. & Ell., 483.

“ We are inclined to think, says Shaw, C. J., in Bacon v. *175Towne, that evidence of the general bad reputation of the plaintiff, should have been admitted to rebut probable cause as well as in mitigation of damages.” That this evidence may be received in mitigation of damages is as well settled as any principle of law. Whether it may properly be received upon the question of probable cause, is not a matter now before us, for the presiding judge expressly limited all such testimony to the matter of damages, and instructed the jury that it was not .evidence of probable cause. The error, if any, in this respect, was in favor of the plaintiff, and to which he cannot except. The minutes of a deceased justice of the peace, says Shepley, J., in Longley v. Vose, 27 Maine R., 185, made upon his docket, have been regarded as substantially a record of his proceedings, and as satisfactory proof of a judgment rendered by him in a civil action. Baldwin v. Prouty, 13 Johns., 430; Davidson v. Slocumb, 18 Pick., 464. The cases cited by the plaintiff show that in Certain cases docket entries may be received. It does not appear in the present case that the objection was to the fact proved. The evidence off the judgment was by the entries merely, and not by a copy of the record. If the objection had been specifically made on that ground, it might have been removed. No objection seems to have been made at the time.

But however that may have been, the evidence Was only received in diminution of damages, and not as bearing at all upon whether there was probable cause or not. As the jury have found there was probable cause upon other evidence, no cause is perceived for disturbing the verdict.

No question seems to have been made as to the integrity, good faith, and proper caution of the defendant. The instructions bearing upon these points not being reported, must be regarded as liable to no just exception.

Exceptions overruled.