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1 but it could not bind the party whose reason had been condemned without a hearing. Nothing but a judicial investigation, instituted for the purpose of trying the question of sanity, and in which the supposed non compos is allowed the opportunity of being heard, can conclude him."

I Those cases in which one has society? This is the problem. Cercommitted an act which, in & sane tainly if he is insane be ought not to person, would be a crime, and has be, and the verdict of the jury must been acquitted on the ground of in. be accepted as conclusive that at the sanity, are always embarrassing. If time to which their inquiry was dithe verdict is right on the facts, the rected he was insane in fact. But principle on which he is acquitted is that time was not the time of the plain enough. No one can commit a trial; it was the time of the alleged crime who is incapable of harboring criminal act. Suppose, now, it be a criminal intent. The difficult ques- provided by legislation that a person tion concerns what shall be done with thus acquitted shall be committed to him afterward. And one would

an asylum as a permanent inmate ; naturally suppose that this question is this adınissible ? ought not to be a difficult one.

The difficulties in the way of such person, from mental disease, is unable legislation are the following: 1. There to control his own actions, and is im- has as yet been no adjudication that pelled by delusions or frenzy to com- the person at the time of acquittal is mit violence upon others, he ought insane, and, if not, he cannot law. to be subjected to legal restraint. fully be confined. An insanity which

The popular belief is, however, that has passed away cannot excuse an in a large proportion of these cases imprisonment. 2. If it be allowable the defense of insanity was a fraud, to assume that an insanity found to or at least the suggestion of insanity exist at one time still continues, and has been seized upon as an excuse for on that ground to commit the party discharging a guilty person for whose to an asylum as presumptively inacquittal the jury could suggest no sane, still the supposed non compos other reason.

This belief has sub would have a right to disprove this jected the administration of the law presumption at any time. To deny to much criticism; and by some un- him the right to have his case in vesthinking people the law itself is as- tigated on the facts at any time, sailed. The fault in such cases is would be to distinguish bis case from that the jury, improperly actuated by that of other insane persons ; and sympathy, assign one reason for an this must be justified on some legal acquittal, when the real reason is some- ground. It certainly could not be thing quite different. They say, “We justified on the ground that the jury acquit because of insanity,” when had rendered an improper verdict ; in their hearts they mean, “W the verdict must be taken as correct. acquit because we think the act ex- But as no other ground can possibly cusable on grounds the law does not be suggested, it must follow that the accept as an excuse.” They assign a restraint of liberty, though based upvalid excuse because they know the on a verdict which found the existreal excuse is not valid. Shall a party ence of insanity, must be made tu thus excused be turned loose upon cease whenever a judicial investiga'

*But an insane person, without any adjudication, may [*179] also lawfully be restrained of his liberty for his own benefit, either because it is necessary to protect him against a tendency to suicide or to stray away from those who would care for him, or because a proper medical treatment requires it. The restraint for this purpose may be imposed under the direction of those *who, by reason of relationship, are the [*180] proper custodians of the person, or by the State acting through it proper officers."

What is said here concerning persons insane will apply to all who, by reason of disease or mental infirmity of any sort, are incapable of subjecting their actions to the control of reason.

MALICIOUS PROSECUTION.

The Nature of the Wrong. It is the lawful right of every man, who believes he has a just demand against another, to institute a suit and endeavor to obtain the proper redress. If his belief proves to be unfonnded, his groundless proceedings may possibly cause a very serious injury to the defendant; the mere assertion of a serious claim at law being capable, in some circumstances, of affecting materially one's standing and credit. But to treat that as a legal wrong which consists merely in asserting a claim which cannot satisfactorily be established, would be plainly impolitic and unjust. The failure to sustain it might possibly have come from the death of a witness or other loss of

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tion, which is a matter of right, shall determine that insanity does not exist. It is not possible constitutionally to provide that one shall be imprisoned as an insane person who can show that he is not insane at all. Neither is it competent 10 order one confiaed until certain designated offi. cers, on their voluntary investigation, shall certify that reason is restored. Underwood o. People, 32 Mich. 1. If these cases are mischievous, the remedy is to be found in a correction of the public sentiment which tolerates, and indeed invites, improper convictions, and not in setting aside fundamental principles.

Selectmen and overseers of the poor have no authority ex officio to control and restrain persons of unsound mind. Like all other persons they may, from the necessity of the case, confine them for a reasonable time to prevent mischief, until proper proceedings can be had for the appoiotment of a guardian. No one can confine an insane person indefinitely, except under the sanction and upon compliance with the formalities of the law. Colby o. Jackson, 12 N. H. 526.

· Ordronaux, Judicial Aspects of Insanity, p. xxxviii, Introd,

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testimony, from false evidence, from a mistake of law in the judge, froin misconduct in the jury, from any cause rather than fault in the plaintiff himself. To compel him, as the penalty for instituting a suit he cannot sustain, to pay the costs of a defense is generally all that is just, and is sufficient to make persons cautious about instituting suits which they have reason to believe are baseless.

It is equally the lawful right of every man to institute or set on foot criminal proceedings wherever he believes a public offense has been committed. Here the injury is likely to be more serious if the proceeding is unwarranted, but here, also, it would be both unjust and impolitic to make the prosecution which fails an actionable wrong. In some cases complainants are required to become responsible for costs, but this is usually the only liability.

Nevertheless it is a duty which every man owes to every other not to institute proceedings maliciously, which he has no good reason to believe are justified by the facts and the law. Therefore, an action as for tort will lie when there is a concurrence of

the following circumstances : [*181] *1. A suit or proceeding has been instituted without

any probable cause therefor." 2. The motive in instituting it was malicious.

3. The prosecution has terminated in the acquittal or discharge of the accused.

Each of these circumstances requires separate attention. And what is said in this place will concern criminal proceedings only.

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· Procuring a search warrant is sufficient as institution of a proceeding. Carey v. Sheets, 67 Ind. 375. Filing an affidavit as beginning of bastardy proceedings. Coffey o. Myers, 84 Ind. 105. Taking out a peace warrant. Hyde 0. Greuch, 62 Md. 577. But an arrest by an officer based upon an affidavit not made in any cause is not ground for an action. Lewin o. Uzuber, 65 Md. 341. It is not of itself a defense to the action that the complaint was defective and charged no offense. Potter o. Gjert

sen, 34 N. W. Rep. 746 (Minn.); Bell 0. Keepers, 14 Pac. Rep. 542 (Kan.); Stocking v. Howard, 73 Mo. 25. magistrate erroneously supposes that facts set up in an affidavit constitute a crime and upon it issues process, the affiant is not liable. Habn o. Schmidt, 64 Cal. 284; Newman e. Davis, 58 Ia. 447. If in embodying affiant's statement in a complaint the

a magistrate adds the word feloniously, the meaning of which affiant does not know, the latter is not liable. Rogers o. Hassard, 2 Ont. App. 507.

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Probable Cause. The first of these is the existence of probable cause.

This involves a consideration of what the facts are, and what are the reasonable deductions from the facts. It is, therefore, what is denominated a mixed question of law and fact. If the facts are not in dispute the question is for the court." Upon disputed facts the jury must be left to pass,' but the court must determine on the facts found whether or not prob. able cause existed.' Many judges have attempted to define what shall constitute probable cause.

Says Chief Justice TINDALL : “ There must be a reasonable cause, such as would operate on the mind of a discreet man; there must be a probable cause, such as would operate on the mind of a reasonable man.” Another eminent judge has said, “There must be such a state of facts as would lead a man of or. dinary caution and prudence to believe and entertain an hon. est and strong suspicion that the person is guilty.” • Says

· Busst o. Gibbons, 6 H. & N, 912; Boyd 0. Cross, 35 Md. 194; McWil. liams o. Hoban, 42 Md. 56; Speck o. Judson, 63 Me. 207; Cooper o. Waldron, 50 Me. 80; Sweet o. Negus, 30 Mich. 406; Chapman o. Cawrey, 50 Ill. 512; Thompson o. Force, 65 Ill. 370; Swaim o. Stafford, 4 Ired. 392; Harkrader 0. Moore, 44 Cal. 144; Pangburn o. Bull, 1 Wend. 345; Masten e. Deyo, 2 Wend. 424; Ulmer o. Leland, 1 Me. 135. Crescent City, etc., Co. o. Butchers, etc. Co., 120 U. 8. 141; McNulty o. Walker, 64 Miss. 198; Bell o. Keepers, 14 Pac. Rep. 542 (Kan.); Sartwell 0. Parker, 141 Mass. 405.

?" It is generally the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it proves, with instructions that the facts found amount to proof of probable cause or that they do not." STRONG, J., Stewart o. Sonneborn, 99 U.S. 187. Hicks o. Faulkner, L.R.8 Q. B. D. 167; Humphries o. Parker, 52 Me. 502; Driggs 0. Burton, 44 Vt.

124; Heyne 0. Blair, 62 N. Y. 19; Thaule 0. Krekeler, 81 N. Y. 428; Cole o. Curtis, 16 Minn, 182; Burton o. St. Paul, etc., Co., 33 Minn. 189; Eastin o. Bank, 66 Cal. 123; Fulton 0. Onesti, 66 Cal. 575; Emerson 0. Skaggs, 52 Cal. 246; Meysenberg o. Engelke, 18 Mo. App. 346; Johnson 0. Miller, 63 Ia. 529; Woodworth o. Mills, 61 Wis. 44; Angelo o. Faul, 85 Ill. 106; Travis o. Smith, 1 Penn. St. 234; Walbridge o. Pruden, 102 Penn. St. 1; Hamilton o. Smith, 39 Mich. 222; Johns o. Marsh, 52 Md. 323; Thelin v. Dorsey, 59 Md. 539; Vinal 0. Core, 18 W. va. 1; Ramsey 0. Arrott, 64 Tex. 320. But in South Carolina the question of probable cause is held to be for the jury under suitable instructions, Caldwell 0. Bennett, 22 S. C. 1.

8 Broad 0. Ham, 5 Bing. (N. C.), 722

• SHAW, Ch. J., in Bacon o. Towne, 4 Cush. 217, 238. “If every man who suffers by the perpetration of a crime were bound, under the penalty of heavy damages, to ascertain before he commences a prosecution that he has

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(*182] another: *“Anything which will create in the mind of

a reasonable man the belief that a felony existed, and that the party charged was in any way concerned in it, is probable cause.” 1 A mere belief, therefore, that cause exists is not sufficient, for one may believe on suspicion and suspect without cause, or his belief may proceed from some mental peculiarity of his own; there must be such grounds of belief as would influence the mind of a reasonable person, and nothing short of this could justify a serious and formal charge against another.' Still, some allowance must be made for the excitement under which prosecutions for supposed offenses against the complainant himself are almost necessarily instituted. The complainant cannot be required

such evidence as will insure a conviction, few prosecutions would be set on foot, the guilty would escape while conclusive evidence was sought for; offenses of every grade would, for the most part, go unpunished, and the penal law would be scarcely more than a dead letter. The law, there. fore, protects the prosecutor if he have reasonable or probable ground for the prosecution, that is, if he have such ground as would induce a man of ordinary prudence and discretion to believe in the guilt and to expect the conviction of the person suspect. ed, and if he acts in good faith on such belief and expectation.” Faris o. Starke, 3 B. Mon. 4, 6, per MarSHALL, Ch. J. The belief may be based upon purely circumstantial evi. dence. Raulston o. Jackson, 1 Sneed, 128.

O'NEILL, Ch. J., in Braveboy o. Cockfield, 2 McMul. 270, 274.

2 Mowry o. Whipple, 8 R. I. 360; Farnam 0. Feeley, 56 N. Y. 451 ; Winebiddle o. Porterfield, 9 Penn. St. 137, 139; Collins o. Hayte, 50 Ill. 353; Hall 0. Suydam, 6 Barb. 83, 89. In Fagnan o. Knox, 66 N. Y. 525, 526, CHURCH, Ch. J., says: “The question of what constitutes probable cause does not depend upon whether the offense has been committed in fact,

nor whether the accused is guilty or innocent, but upon the prosecutor's belief, based upon reasonable grounds. Bacon o. Towne, 4 Cush. 217. The prosecutor may act upon appearances; if the apparent facts are such that a discreet and prudent person would be led to the belief that the accused had committed a crime, he will not be liable in this action, although it may turn out that the accused was innocent. Carl 0. Ayres, 53 N. Y. 14. If there is an honest belief of guilt, and there exist reasons. ble grounds for such belief, the party will be justified. But however suspicious the appearances may be from existing circumstances, if the prosecutor has knowledge of facts which will explain the suspicious appear. ances and exonerate the accused from & criminal charge, he cannot justify a prosecution by putting forth the prima facie circumstances and excluding those within his knowledge which tend to prove innocence." Such a case must be presented to the mind as would induce a sober, sensible and discreet person to act upon it. Barron 0. Mason, 31 VL 189. See Spengler o. Davy, 15 Grat 381 ; Bauer 0. Clay, 8 Kan. 580; Boyd o. Cross, 35 Md. 194; Travis e. Smith, 1 Penn. St. 234 ; Shaul .

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