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.' 1 Those cases in which one has committed an act which, in a sane person, would be a crime, and has been acquitted on the ground of insanity, are always embarrassing. If the verdict is right on the facts, the principle on which he is acquitted is plain enough. No one can commit a crime who is incapable of harboring a criminal intent. The difficult question concerns what shall be done with him afterward. And one would naturally suppose that this question ought not to be a difficult one. If a person, from mental disease, is unable to control his own actions, and is impelled by delusions or frenzy to commit violence upon others, he ought to be subjected to legal restraint. The popular belief is, however, that in a large proportion of these cases the defense of insanity was a fraud, or at least the suggestion of insanity has been seized upon as an excuse for discharging a guilty person for whose acquittal the jury could suggest no other reason. This belief has subjected the administration of the law to much criticism; and by some unthinking people the law itself is assailed. The fault in such cases is that the jury, improperly actuated by sympathy, assign one reason for an acquittal, when the real reason is something quite different. They say, "We acquit because of insanity," when in their hearts they mean, “We acquit because we think the act excusable on grounds the law does not accept as an excuse." They assign a valid excuse because they know the real excuse is not valid. Shall a party thus excused be turned loose upon society? This is the problem. Certainly if he is insane he ought not to be, and the verdict of the jury must be accepted as conclusive that at the time to which their inquiry was directed he was insane in fact. But that time was not the time of the trial; it was the time of the alleged criminal act. Suppose, now, it be provided by legislation that a person thus acquitted shall be committed to an asylum as a permanent inmate; is this admissible? The difficulties in the way of such legislation are the following: 1. There has as yet been no adjudication that the person at the time of acquittal is insane, and, if not, he cannot lawfully be confined. An insanity which has passed away cannot excuse an imprisonment. 2. If it be allowable to assume that an insanity found to exist at one time still continues, and on that ground to commit the party to an asylum as presumptively insane, still the supposed non compos would have a right to disprove this presumption at any time. To deny him the right to have his case investigated on the facts at any time, would be to distinguish his case from that of other insane persons; and this must be justified on some legal ground. It certainly could not be justified on the ground that the jury had rendered an improper verdict ; the verdict must be taken as correct. But as no other ground can possibly be suggested, it must follow that the restraint of liberty, though based upon a verdict which found the exist ence of insanity, must be made to 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 direc tion 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 unfounded, 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 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 to order one confined until certain designated offcers, on their voluntary investigation, shall certify that reason is restored. Underwood . 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 appointment 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 v. Jackson, 12 N. H 526. 'Ordronaux, Judicial Aspects of Insanity, p. xxxviii. Introd testimony, from false evidence, from a mistake of law in the judge, from 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.1 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. 1 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 v. Myers, 84 Ind. 105. Taking out a peace warrant. Hyde . 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 . Uzuber, 65 Md. 341. It is not of itself a defense to the action that the complaint was defective and charged no offense. Potter v. Gjert sen, 34 N. W. Rep. 746 (Minn.); Bell v. Keepers, 14 Pac. Rep. 542 (Kan.); Stocking v. Howard, 73 Mo. 25. If a magistrate erroneously supposes that facts set up in an affidavit constitute a crime and upon it issues process, the affiant is not liable. Hahn . Schmidt, 64 Cal. 284; Newman v. Davis, 58 Ia. 447. If in embodying affiant's statement in a complaint the magistrate adds the word feloniously, the meaning of which affiant does not know, the latter is not liable. Rogers. Hassard, 2 Ont. App. 507. 2 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 ordinary caution and prudence to believe and entertain an hon. est and strong suspicion that the person is guilty." Says Busst v. Gibbons, 6 H. & N. 912; Boyd . Cross, 35 Md. 194; McWilliams v. Hoban, 42 Md. 56; Speck v. Judson, 63 Me. 207; Cooper v. Waldron, 50 Me. 80; Sweet v. Negus, 30 Mich. 406; Chapman v. Cawrey, 50 Ill. 512; Thompson v. Force, 65 Ill. 370; Swaim v. Stafford, 4 Ired. 392; Harkrader. Moore, 44 Cal. 144; Pangburn o. Bull, 1 Wend. 345; Masten v. Deyo, 2 Wend. 424; Ulmer v. Leland, 1 Me. 135. Crescent City, etc., Co. v. Butchers, etc. Co., 120 U. 8. 141; McNulty o. Walker, 64 Miss. 198; Bell v. Keepers, 14 Pac. Rep. 542 (Kan.); Sartwell v. 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 v. Sonneborn, 99 U.S. 187. Hicks v. Faulkner, L.R.8 Q. B. D. 167; Humphries v. Parker, 52 Me. 502; Driggs . Burton, 44 Vt. 124; Heyne . Blair, 62 N. Y. 19; Thaule v. Krekeler, 81 N. Y. 428; Cole v. Curtis, 16 Minn. 182; Burton v. St. Paul, etc., Co., 33 Minn. 189; Eastin v. Bank, 66 Cal. 123; Fulton v. Onesti, 66 Cal. 575; Emerson v. Skaggs, 52 Cal. 246; Meysenberg v. Engelke, 18 Mo. App. 346; Johnson v. Miller, 63 Ia. 529; Woodworth v. Mills, 61 Wis. 44; Angelo v. Faul, 85 Ill. 106; Travis v. Smith, 1 Penn. St. 234; Walbridge v. Pruden, 102 Penn. St. 1; Hamilton v. Smith, 39 Mich. 222; Johns v. Marsh, 52 Md. 323; Thelin v. Dorsey, 59 Md. 539; Vinal v. Core, 18 W. Va. 1; Ramsey v. Arrott, 64 Tex. 320. But in South Carolina the question of probable cause is held to be for the jury under suitable instructions. Caldwell v. Bennett, 22 S. C. 1. 722. Broad v. Ham, 5 Bing. (N. C.), * SHAW, Ch. J., in Bacon v. 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 [*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 prob able cause. 99 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, therefore, 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 suspected, and if he acts in good faith on such belief and expectation." Faris . Starke, 3 B. Mon. 4, 6, per MARSHALL, Ch. J. The belief may be based upon purely circumstantial evidence. Raulston v. Jackson, 1 Sneed, 128. 1 O'NEILL, Ch. J., in Braveboy v. Cockfield, 2 McMul. 270, 274. 2 Mowry v. Whipple, 8 R. I. 360; Farnam v. Feeley, 56 N. Y. 451; Winebiddle. Porterfield, 9 Penn. St. 137, 139; Collins v. Hayte, 50 Ill. 353; Hall v. Suydam, 6 Barb. 83, 89. In Fagnan v. 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, 53 nor whether the accused is guilty or innocent, but upon the prosecutor's belief, based upon reasonable grounds. Bacon v. 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 . Ayres, N. Y. 14. If there is an honest belief of guilt, and there exist reasonable 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 appearances and exonerate the accused from a criminal charge, he cannot justify a prosecution by putting forth the prima facie circumstances and excluding those within his knowl edge 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 . Mason, 31 Vt. 189. See Spengler v. Davy, 15 Grat. 381; Bauer v. Clay, 8 Kan. 580; Boyd . Cross, 35 Md. 194; Travis . Smith, 1 Penn. St. 234; Shaul . |
