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the publication of such proceedings is productive of good, and promotes the ends of justice. But in such cases, the publisher must find his justification, not in privilege, but in the truth of the charges.” 1

But the English courts have lately shown an inclination to depart from this doctrine, particularly in relation to the publication of police reports. In a late case,” Lord Campbell indorses and acts upon the following quotation from an opinion of Lord Denman, expressed before a committee of the House of Lords in 1843: “I have no doubt that (police reports) are extremely useful for the detection of guilt by making facts notorious, and for bringing those facts more correctly to the knowledge of all parties in unraveling the truth. The public, I think, are perfectly aware that those proceedings are ex parte, and they become more and more aware of it in proportion to their growing intelligence; they know that such proceedings are only in the course of trial, and they do not form their opinions until the trial is had. Perfect publicity in judicial proceedings is of the highest importance in other points of view, but in its effect upon character, I think it desirable. The statement made in open court will probably find its way to the ears of all in whose good opinion the party assailed feels an interest, probably in an exaggerated form, and the imputation may often rest upon the wrong person ; both these evils are prevented by correct reports.” The publication of police reports, or of any other preliminary proceedings of a judicial nature, will bring the news to the ears of countless numbers of strangers, who, not knowing the party accused, will not likely be prejudiced in his favor, and certainly would not have heard or have taken any interest in the rumor of the man's guilt,

· Stanley v. Webb, 4 Sandf. 21. See Usher v. Severance, 21 M (37 Am. Dec. 33); Matthews v. Beach, 5 Sandf. 259; Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548; Duncan v. Thwaites, 3 B. & C. 556 ; Charlton v. Watton, 6 C. & P. 385. ? Lewis v. Levy, E. B. & E. 537.

but for the publication. The readers of these reports, who are inclined to receive them in the judicial frame of mind, suggested by Lord Denman, are not numerous, and very few will dismiss from their minds all suspicions against the innocence of the accused when there has been a failure to convict him of the charge. Even when there has been a trial of the defendant, and the jury has brought in a verdict of acquittal, the publication of the proceedings is calculated to do harm to the reputation of the defendant. But the public welfare demands the freest publicity in ordinary legal proceedings, and the interest of the individual must here give way. On the other hand, there is no great need for the publication of the preliminary examinations. In only a few cases can the publication prove of any benefit to the public. The public demand being small, the sacrifice of private interest is not justified.

Not only is the publication of the proceedings of a court of law privileged; but the privilege extends to the publication in professional and religious journals of proceedings had before some judicial body or council, connected with the professional or religious organization, which the publishing paper represents. And so likewise would be privileged the publication of legislative proceedings, and the proceedings of congressional and legislative investigating committees.

SECTION 18. Security to reputation - Malicious prosecution.

189. Advice of counsel, how far a defense.

§ 18 Security to reputation - Malicious prosecutionAlthough a prosecution on the charge of some crime may result in a verdict of acquittal, even where the trial would furnish to a judicial mind a complete vindication, by remov

1 Burrows, v. Bell, 7 Gray, 301; Shurtleff v. Stevens, 51 Vt. 501 (31 Am. Rep. 698)

Terry o. Fellows, 21 La. Ann. 375.

2

ing all doubts of the innocence of the accused, it will nevertheless leave its mark upon the reputation. Even a groundless accusation will soil one's reputation. But it is to the interest of the public, as well as it is the right of the individual, that resort should be made to the courts for redress of what one conceives to be a wrong. While a litigious spirit is to be deprecated, since in the institution of legal order the right to self-defense is taken away, except as an immediate preventive of attacks upon person and property, it is not only expedient but just, that when a man believing that he has a just claim against the defendant, or that this person has committed some act which subjects him to a criminal prosecution, sets the machinery of the law in motion, he should not be held responsible for any damage that might be done to the person prosecuted, in the event of his acquittal. The good faith of the prosecutor should shield him from liability. Any other rule would operate to discourage to a dangerous degree the prosecution of law-breakers, and hence it has been recognized as a wise limitation upon the right of security to reputation. But the interests of the public do not require an absolute license in the institution of groundless prosecutions. The protection of privilege is thrown around only those who in good faith commence the prosecution for the purpose of securing a vindication of the law, which they believe to have been violated. Hence we find that the privilege is limited, and, as it is succinctly stated by the authorities, in order that an action for malicious prosecution, in which the prosecutor may be made to suffer in damages, may be sustained, three things must concur: there must be an acquittal of the alleged criminal, the suit must have been instituted without probable cause, and prompted by malice.

A final acquittal is necessary, because a conviction would be conclusive of his guilt. And even where he is convicted in the court below, and a new trial is ordered by the superior court for error, the conviction is held to be conclusive proof of the existence of probable cause. But an acquittal, on the other hand, does not prove the want of probable cause, does not even raise the prima facie presumption of a want of probable cause. Probable cause, as defined by the Supreme Court of the United States, is "the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime, for which he was prosecuted.”'?

The want of probable cause cannot be inferred; it must be proven affirmatively and independently of the presence of actual malice. The plainest proof of actual malice will not support an action for malicious prosecution, if there be probable cause. With probable cause, the right to institute the prosecution is absolute, and the element of malice does not affect it. But when it has been shown that the defendant in the prosecution has been acquitted and that the suit had been instituted without probable cause, the malice need not be directly and affirmatively proved. It may be inferred from the want of probable cause. The want of probable cause raises the prima facie presumption of malice, and

1 Witham o. Gowen, 14 Me. 362; Payson o. Caswell, 22 Me. 212; WhitDey v. Peckham, 15 Mass. 242; Bacon v. Towne, 4 Cush. 217; Kirpatrick D. Kirkpatrick, 39 Pa. St. 288; Griffs v. Sellars, 4 Dev. & Bat. 176.

? Wheeler 0. Nesbit, 24 How. (U. S.) 545. See Gee v. Patterson, 63 Me. 49, Barron v. Mason, 31 Vt. 189; Mowry v. Whipple, 8 R. I. 360; Stone o. Stevens, 12 Conn. 219; Carl v. Ayres, 53 N. Y. 13; Farnam v. Feeley, 55 N. Y. 551; Fagnan v. Knox, 65 N. Y. 525; Winebiddle v. Porterfield, 9 Pa. St. 137; Boyd v. Cross, 35 Md. 194; Spengle v. Davy, 15 Gratt. 381; Braveboy v. Cockfield, 2 McMul. 270; Raulston v. Jackson, 1 Sneed, 128; Faris v. Starke, 3 B. Mon. 4; Collins v. Hayte, 50 Ill. 353; Gallaway v. Burr, 32 Mich. 332; Lawrence v. Lapning, 4 Ind. 194; Shaul v. Brown, 28 Iowa, 57 ( 4 Am. Rep. 151); Bauer v. Clay, 8 Kan. 580.

: Williams v. Taylor, 6 Bing. 183; Cloon v Gerry, 13 Gray 201 ; Heyne v. Blair, 62 N. Y. 19; Travis v. Smith, 1 Pa. St. 234; Bell 0. Pearcy, 5 Ired. 83; Hall v. Hawkins, 5 Humph. 357; Israel v. Brooks, 23 Ill. 575; King v. Ward, 77 III. 603; Mitchinson o. Cross, 58 Ill. 366; Callaban v. Caffara ti, 39 Mo. 136; Sappington v. Watson, 50 Mo. 83; Malone v. Murphy, 2 Kan. 250.

throws upon the prosecutor the burden of proving that he was not actuated by malice in the commencment of the prosecution. But this presumption may be rebutted by the presentation of facts, which indicate that the prosecutor was actuated solely by the laudable motives of bringing to justice one whom he considers a criminal. The want of probable cause is not inconsistent with perfect good faith. The prosecutor may have been honestly mistaken in the strength of his case. But when a man is about to institute a proceeding which will do irreparable damage to a neighbor's reputation, however it may terminate, it is but natural that he should be required to exercise all reasonable care in ascertaining the legal guilt of the accused. As it was expressed in one case: “Every man of common information is presumed to know that it is not safe in matters of importance to trust to the legal opinion of any but recognized lawyers ; and no matter is of more legal importance than private reputation and liberty. When a person resorts to the best means in his power for information, it will be such a proof of honesty as will disprove malice and operate as a defense proportionate to his diligence.” In order, therefore, that the prosecutor may, where a want of probable cause has been established against him, claim to have acted in good faith and thus screen himself from liability, he must show that he consulted competent legal counsel, and that the prosecution was instituted in reliance upon the opinion of counsel that he had a good cause of action.

1 Merriam v. Mitchell, 13 Me. 439; Mowry v. Whipple, 8 R. I. 360; Closson v. Staples ; 42 Vt. 209; Pangburn o. Bull, 1 Wend. 345; McKewn v. Hunter, 30 N. Y. 624; Dietz v. Langfitt, 63 Pa. St. 234; Cooper 0. Utterbach, 37 Md. 282; FI o. Wagner, 46 Md. 581; Ewing v. Sanford, 19 Ala. 605; Blass v. Gregor, 15 La. Ann. 421; White 0. Tucker, 16 Ohio St. 468; Ammerman v. Crosby, 26 Ind. 451; Harpham v. Whitney, 77 Ill. 32; Hollidayo. Sterling, 62 Mo. 321; Harkradero. Moore, 44 Cal. 144.. 2 Campbell, J. in Stanton o. Hart, 27 Mich. 539.

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