SALEEBY BROTHERS, Lebanese Merchants, Appellants, v. WILMOT T. BRIGHT,

Appellee APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY. Argued October 26, 1965. Decided January 20, 1966. 1. An action for malicious prosecution will not lie against a complainant who had reasonable or probable cause for making the complaint. 1956 CODE 17 :67. Where the evidence in a criminal prosecution which terminated in a judgment of acquittal shows that the complainant had reasonable or probable cause for making the complaint, the acquitted defendant cannot sustain a civil action against the complainant for malicious prosecution. 2. Appellee was acquitted of petty larceny after trial in a magisterial court on charges based on a complaint by appellants. Appellee then instituted a civil action in the circuit court against appellants for damages for malicious prosecution. The circuit court rendered judgment on a jury verdict awarding damages to appellee. On appeal to the Supreme Court, the judgment was reversed. Momolu S. Cooper for appellants. Thompson for appellee. G. P. Conger MR. Court. JUSTICE MITCHELL delivered the opinion of the The record in this case shows that the appellee was employed as an accountant by Saleeby Brothers in Harper City, Cape Palmas. He alleged that on the third day of October, 1958, when he reported to work, he was requested by Richard Haikal, then agent for Saleeby Brothers, to surrender the keys in his possession because he was dismissed and would be prosecuted for certain goods stolen from their warehouse. 170 LIBERIAN LAW REPORTS 171 Thereafter the matter was referred to the police authorities and they were requested to probe into the stealing and apprehend the criminals. The case was placed in the hands of Police Inspector Joseph Diggs who reportedly found some of the stolen properties such as khaki, etc., in the possession and custody of one Nathaniel Moulton. According to Inspector Diggs, Moulton informed him that the articles had been given to him by Mr. Wilmot P. Bright, the appellee herein, and as he disposed of them he made his financial report to Mr. Bright who gave him the articles to sell. The khaki and other articles having been identified by Mr. Haikal as the property stolen from Saleeby Brothers’ warehouse, the necessary charge slip was prepared by Inspector Diggs and forwarded to Magistrate S. A. D. Thomson for his action. A writ of arrest was issued and served on the appellee, than defendant, for the crime of petty larceny on October 9, 1958. Trial of this case continued until the month of December of the same year, and notwithstanding Richard Haikal swore to the fact that the goods were the property which had been stolen from the warehouse of Saleeby Brothers and also deposed to this fact in the magisterial court during the course of the trial,’ Wilmot P. Bright was acquitted of the crime on a judgment of Magistrate Thomson and Associate Magistrate Seton. Following the discharge without day of defendant Wilmot P. Bright upon a judgment that appeared to be tainted throughout with collusion and connivance, he sued out an action of damages for malicious prosecution by attachment against Saleeby Brothers, represented by their agent Richard Haikal, in the Circuit Court of the Fourth Judicial Circuit, Maryland County, at its February 1959 term. Pleadings having rested, the case was called and heard at the August 196o term of the aforesaid court. The jury awarded damages in the sum of $999 and a judgment was entered thereon. The defendant in that action 172 LIBERIAN LAW REPORTS excepted and prosecuted an appeal to this Court for a review of the case including the issues raised and set forth in a bill of exceptions comprising 13 counts. This bill of exceptions traversed exceptions taken in the court below to questions asked in the trial and should form a part of this opinion. But since an action of damages for malicious prosecution is one that lawmakers have been very particular in exploring to offset an abuse of the right of citizens and aliens and also to prevent the unmeritorious prosecution of parties without justification or right, we shall first divert our attention to the law which authorizes a suit of damages to be brought for malicious prosecution and ascertain its purport, spirit, and intention as a background to the action. Our Injuries Law makes the following provisions : “A malicious action, suit, prosecution, or other legal proceeding is one brought against a person in a matter of which he has been lawfully acquitted or finally discharged or one totally without any reasonable cause or foundation. The essential facts which have to be established in an action for damages for malicious prosecution are : (a) the absence of reasonable cause or foundation for the alleged malicious action, suit, prosecutions or proceedings which is complained of ; (b) the termination of such action, suit, prosecutions or proceeding in favor of the party against whom it was brought; and (c) actual damages of any sort sustained thereby. Although this is a kind of injury to the reputation, a showing of any damages is sufficient to sustain it. It is not necessary to show actual malice on the part of the alleged injurer ; the malice may be inferred from the absence of reasonable cause for the action, suit, prosecution, or proceeding.” 1956 CODE 17:67. The above-quoted statutory provision specifies the legal grounds required under our law to warrant a suit of damages for malicious prosecution. The judgment of the magisterial court on which the present appellee was acquitted of the charge of petty larceny reads as follows : LIBERIAN LAW REPORTS 173 “This is a case which has been on trail since the 15th day of October 1958 and has caused much excitement since its commencement up to this day, the z6th day of December for judgment. The defendant having pleaded not guilty to .the charge which contributed legally to the prolongation of this trial, and now that the end of the same has been reached, the court is expected to play its part in the role of administration of justice in said case. “It must first be understood that a person criminally charged has the advantage of his adversaries’ being called to prove said charge beyond a rational doubt which may be established by unimpeached circumstantial proof to the exclusion of direct and positive evidence despite what might be existing sentiments. The statutes governing our country and the manner by which actions are proved to be brought before our courts are plain and those who fail to meet the requirements, cannot expect to meet the benefits. For courts cannot assume responsibilities and burdens of any party litigant who fails to avail himself at the incipient stage of a case, much as we might be anxious to give relief. All party litigants are required so to surround their legal advantages as to see that all prerequisites are fulfilled. The least carelessness occurring in the premises will overturn or defeat the best laid action ; in which instance the plaintiff has his much more imimportant part to play; while the defendant has his defense to disprove all the allegations made and preferred against him; and lastly the court has its part to play in discerning the truth from the false of all evidence adduced at the trial and thereby determine a true judgment when these prerequisites shall have been carefully met on the part of all the parties litigant. “Traversing the evidence adduced at the trial of this case, witness Richard Haikal, agent for Messrs. Saleeby Brothers of this City, being the private prose- 174 LIBERIAN LAW REPORTS cutor, came to the stand and deposed for and on behalf of the prosecution, but in all his said testimony there is nowhere recorded that he, the said private prosecutor, testified that the defendant did steal and take away the alleged stolen goods. Nor in like manner did any of the other witnesses for the said prosecution. The prosecution wanted to have the said witness Richard G. Haikal brought back to the stand, presumably to testify to the value of the alleged stolen goods, but out of fairness and true justice in the light of the law the court could not but overrule the application of the prosecution in the premises, to which they excepted. “There were also efforts further put on part of the same prosecution to certain rebutting witnesses at a time which prevailed without the limit and the defense counsel duly raised objections against these witnesses. For we are again here reminded that parties litigant must not expect the court to do for them that which they should do for themselves, and no bias or aid should be expected of the court by any party litigant at trial. Therefore, in view of the foregoing, this court has no alternative than to dismiss this case and discharge the defendant without day, he being found not guilty of the charge alleged against him.” This is a judgment of a court in a criminal matter that has attracted our attention very closely and set us into deep thinking of the type and quality of men we have in our courts of first instance to handle such matters. A judgment in such matters is not left to the discretion of the court as does seem to be the conception of the trial magistrate, and under this judgment he cannot be precluded from connivance and collusion. At the trial of this case in the court below, Inspector Joseph Diggs of the NBI who previously testified before the magistrate in the petty larceny case took the witness stand and said, among other things in his statement in chief, the following: LIBERIAN LAW REPORTS 175 “Some time ago Mr. Richard Haikal the then agent for Saleeby Brothers in Cape Palmas, suspected that he had sustained losses in his warehouse and he reported this to Commissioner Yancy. The matter was turned over to me for investigation. I started the job using my techniques. I contacted the agent for Mr. Bright, one Nathaniel Moulton, who whenever he received the articles, would dispose of them and make his financial returns to Mr. Bright. Moulton told me about some khaki and some other items, and with that I came to the police station and had the case booked. It is the policy of the magistrate that when the case is booked and the charge slip sent in, he reexamines the case and I swear to the writ and the complaint. We brought in Mr. Richard Haikal to identify the goods that were found, but Magistrate Thomson at this time insisted that Mr. Haikal be the complainant and not me–well, he controls his records, so after my statement I was discharged.” On cross-examination he answered the following questions. “Q. Do you know that the alleged stolen articles were found in the possession of Wilmot Bright? “A. It was found in the possession of his special representative, Mr. Nathaniel Moulton, an agent of Mr. Bright. “Q. How then was the plaintiff arrested if the stolen articles were found in the possession of Mr. Nathaniel Moulton? “A. Mr. Moulton, the agent, feet were put in the fire, and it was at that time Mr. Bright’s name was called. “Q. You have said the defendant, Mr. Haikal, did not make the complaint against the plaintiff, Mr. Bright; if you know that he, the agent, was called in and asked about these goods being recovered, apart from his identifying goods, what 176 LIBERIAN LAW REPORTS else did he say, if any, concerning the plaintiff having stolen the articles? “A. Mr. Haikal identified the goods to be his, after which he make it known to the magistrate under oath that the goods were his as I stated in my statement in chief. “Q. By whom were the alleged stolen goods found and discovered from the plaintiff as it is alleged? “A. Having recovered the stolen goods through Mr. Bright’s agent, Mr. Moulton, who made all necessary confession that these articles were given to him to be sold by Mr. Bright. “Q. If you know, say whether the said Moulton was employed by the defendant? “A. He was not. “Q. And so these articles were recovered from Nathaniel Moulton after his feet were held to the fire? “A. Yes.” Besides this evidence of Inspector Diggs, Deputy Commissioner Yancy testified that “with positive and conclusive evidence against Mr. Bright [meaning in the magisterial court] yet he was acquitted.” He testified further : “The defendant was acquitted. I was surprised how that came about with such clear and cogent evidence against him; but I could not question the authority of the court.” And many other statements appear on the records which when taken together must lead the mind to a conclusion that there was probable or reasonable cause for the arrest and prosecution of defendant Wilmot P. Bright; yet he sued out damages for malicious prosecution and offered into evidence the judgment of the magisterial court discharging him from further answering–a pathos that reminds us of the story of Haman and Mordecai spoken of in the Bible. Common law is very vocal on that which it regards to LIBERIAN LAW REPORTS 177 be probable cause and we shall cite some of the law in this opinion. “Probable cause is a state of mind in this, that the facts are regarded from the point of view of the prosecutor. The question is not what the actual facts were, but what he had reason to believe they were. 38. C.J. 403 Malicious Prosecution � z8. “In the majority of decisions probable cause is defined, in substance but with some verbal differences, as reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that accused is guilty of the offense with which he is charged.” Id. � 31. “The facts relied upon to constitute probable cause may be those which are within the personal knowledge of the prosecutor, or those of which he learns from proper information derived from others, or both.” Id., 4.05-4.06 � 35. The evidence in this case is conclusive that appellee as an accountant in the employ of Saleeby Brothers, Cape Palmas, had access and liberty to enter the warehouse at any time during working hours. The deputy commissioner of police testified to the fact that when Richard Haikal, agent of Saleeby Brothers, approached him concerning the missing goods from the warehouse, he mentioned no name in particular .but merely said that he suspected the boys, Mr. Bright, and the Lebanese man who was also in their employ. Inspector Diggs testified that it was he who found the goods in the possession and custody of Nathaniel Moulton who told him that they were given to him for sale by Mr. Wilmot P. Bright for whom he made the sale and to whom he made his financial report. The writ of arrest shows that four tins of Nescafe and one yard of khaki drill were presented as fruit of crime and identified as some of the stolen property, yet not withstanding this strong chain of evidence, 178 LIBERIAN LAW REPORTS the defendant was acquitted of the charge of petty larceny and filed his action against the within appellants, defendants below, in which he alleged that he was prosecuted in the absence of probable cause and also alleged malice, prejudice, and an independent conclusion and action by Saleeby Brothers in a baseless suit of petty larceny sworn to by them in the writ of arrest. The reason now can be glaringly seen without hypothesis why the trial magistrate urged so strongly upon Richard Haikal, agent for Saleeby Brothers, that he sign the complaint instead of the police authority because he contemplated a discharge of the accused and open the gate for damages as he understood it. That is not indicative of the qualities to be found in a judge, nor is it that which the law requires him to be. The trial judge therefore erred in denying defendants’ motion for new trial and also erred in handing down judgment on the verdict of the petty jury awarding plaintiff damages in the sum of $999, especially so when all of the evidence given by Commissioner of Police Allen Yancy and Inspector Joseph Diggs remains on the records solid and unimpeached. When this case was called and heard on October 26, 1958, appellants’ counsel strongly argued the point that probable cause for the prosecution for petty larceny was apparent; that under the law appellee, plaintiff below, was not entitled to a verdict awarding him damages ; that plaintiff should have introduced Nathaniel Moulton to impeach the evidence of Inspector Joseph Diggs; and that therefore the judgment of the court below should be reversed. Appellee argued that he was acquitted of the charge of petty larceny upon sufficient evidence, that the prosecution was without probable cause and that having been inconvenienced and damaged by his arrest and prosecution and brought into public shame and ridicule, he was of legal right entitled to institute his suit in which judgment was rendered in his favor. He requested this Court , LIBERIAN LAW REPORTS 179 not to disturb the judgment and contended that it was based upon the facts and the law controlling in this case. Having reviewed the evidence produced at the trial and the laws, we are of the opinion that the judgment should be reversed and it is hereby reversed with costs against the appellee. And it is thereby so ordered. Judgment reversed.