Blacks Law - 4th Edition
PROBABLE CAUSE
DR 7-103 Performing the Duty of Public Prosecutor
or Other Government Lawyer.
73
(A) A public prosecutor or other government lawyer
shall not institute or cause to be instituted
criminal charges when he knows or it
is obvious that the charges are not supported
by probable cause.
Malicious Arrest
An arrest made willfully and without probable
cause, but in the course of a regular proceeding.
COMMITTED IN PRESENCE OF OFFICER. Under
statutes authorizing arrest without warrant,
when facts and circumstances occurring within
officer's observation, in connection with what, under
circumstances, may be considered as common
knowledge, give him probable cause to believe or
reasonable grounds to suspect that such is the
case. Noce v. Ritchie, 109 W.Va. 391, 155 S.E. 127,
128.
Scotch Law
A fraudulent imitation or suppression of truth, to the
prejudice of another. Bell. "Something used and published
falsely." An old Scottish nomen juris. "Falsehood
is undoubtedly a nominate crime, so much so that Sir
George Mackenzie and our older lawyers used no other
term for the falsification of writs, and the name 'forgery'
has been of modern introduction." "If there is any distinction
to be made between 'forgery' and 'falsehood,' I
would consider the latter to be more comprehensive than
the former." 2 Broun, 77, 78.
FALSELY. In a false manner, erroneously, not
truly, perfidiously or treacherously. Dombroski
v. Metropolitan Life Ins. Co., 126 N.J.L. 545, 19 A.
2d 678, 680. Knowingly affirming without probable
cause. Hicks v. State, 67 Ga.
LEGALLY COMMITTED. Accused has been committed
by magistrate who has jurisdiction to hold
examination and who has actually heard evidence
and determined probable cause exists for holding
defendant. People v. Dal Porto, 17 Cal.App.2d 755,
63 P.2d 1199, 1200.
MALICE IN FACT. Express or actual malice.
Railway Co. v. Behee, 2 Tex.Civ.App. 107, 21 S.W.
384, Hotchkiss v. Porter, 30 Conn. 414.
It implies desire or intent to injure, while "malice in
law," or "implied malice," means wrongful act done intentionally,
without just cause or excuse, and jury may infer
it as a deduction from want of probable cause. Glieberman
v. Fine, 248 Mich. 8, 226 N.W. 669, 670.
MALICE IN LAW. The intentional doing of a
wrongful act without just cause or excuse. Lyons
v. St. Joseph Belt Ry. Co., Mo.App., 84 S.W.2d
933, 944. Implied, inferred, or legal malice.
Smith v. Rodecap, 5 Ind.App. 78, 31 N.E. 479;
Bacon v. Railroad Co., 66 Mich. 166, 33 N.W. 181.
As distinguished from malice in fact, it is presumed from
tortious acts, deliberately done without just cause, excuse,
or justification, which are reasonably calculated to injure
another or others. Betts v. Jones, 208 N.C. 410, 181 S.E.
334.
MALICIOUS ACCUSATION. Procuring accusation
or prosecution of another from improper motive
and without probable cause. McKenzie v.
State, 113 Neb. 576, 204 N.W. 60, 63.
MALICIOUS PROSECUTION. One begun in malice
without probable cause to believe the charges
can be sustained. Eustace v. Dechter, 28 Cal.App.
2d 706, 83 P.2d 523, 525. Instituted with intention
of injuring defendant and without probable cause,
and which terminates in favor of the person prosecuted.
For this injury an action on the case lies,
called the "action of malicious prosecution." Hicks
v. Brantley, 29 S.E. 459, 102 Ga. 264; Eggett v.
Allen, 96 N.W. 803, 119 Wis. 625.
MALICIOUS USE OF PROCESS. Exists where
plaintiff proceeds maliciously and without probable
cause to execute object which law intends process
to subserve. Davison-Paxon Co. v. Walker,
45 Ga.App. 395, 165 S.E. 160, 163.
PRESENCE OF AN OFFICER. An offense is
committed in "presence" or "view" of officer, within
rule authorizing arrest without warrant, when
officer sees act constituting it, though at distance,
or when circumstances within his observation give
probable cause for belief that defendant has committed
offense, or when he hears disturbance created
by offense and proceeds at once to scene, or
if offense is continuing, or has not been fully
consummated when arrest is made. Kennington-
Saenger, Inc., v. Wicks, 168 Miss. 566, 151 So. 549,
551. Mantei v. State, 210 Wis. 1, 245 N.W. 683,
684.
PROBABLE CAUSE. Reasonable cause. State
v. Baltes, 183 Wis. 545, 198 N.W. 282, 284. Having
more evidence for than against. Ex parte Souza,
65 Cal.App. 9, 222 P. 869, 870. A reasonable
ground for belief in the existence of 'facts warranting
the proceedings complained of. Owens
v. Graetzel, 149 Md. 689, 132 A. 265, 267. An apparent
state of facts found to exist upon reasonable
inquiry, (that is, such inquiry as the given
case renders convenient and proper,) which would
induce a reasonably intelligent and prudent man
to believe, in a criminal case, that the accused
person had committed the crime charged, or, in a
civil case, that a cause of action existed. Brand
v. Hinchman, 68 Mich. 590, 36 N.W. 664, 13 Am.
St.Rep. 362; Cook v. Singer Sewing Mach. Co.,
138 Cal.App. 418, 32 P.2d 430, 431.
In malicious prosecution the existence of such facts and
circumstances as would excite the 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. Lunsford v. Dietrich, 86 Ala.
250, 5 So. 461, 11 Am.St.Rep. 37. A reasonable ground of
suspicion, supported by circumstances sufficiently strong in
themselves to warrant a prudent and cautious man to
believe that the accused is guilty of the offense with which
he is charged. Sanders v. Palmer, N.Y., 55 F. 217, 5 C.C.
A. 77. Such a state of facts and circumstances known to
the prosecutor personally or by information from others
VEXATIOUS. Without reasonable or probable
cause or excuse. Gardner v. Queen Ins. Co. of
America, 232 Mo.App. 1101, 115 S.W.2d 4, 7.
as would, in the judgment of the court, lead a man of ordinary
caution, acting conscientiously in the light of such
facts and circumstances, to believe that the person charged
is guilty. Keebey v. Stifft, 145 Ark. 8, 224 S. W. 396, 400.
See, also, Galley v. Brennan, 216 N.Y. 118, 110 N.E. 179,
180. Where defendant in an action for malicious prosecution
shows that before commencing the prosecution he, in
good faith, consulted an attorney of good standing and
made a full disclosure of all of the facts reasonably obtainable,
and in good faith acted upon such advice, this
of itself constitutes "probable cause." Gustason v. Speak,
85 Cal.App. 18, 258 P. 725, 726; Treloar v. Harris, 66 Ind.
App. 159, 117 N.E. 975, 976.
As justifying arrest without a warrant by one believed
guilty of felony or to be engaged in commission of a
felony, is a belief fairly arising out of facts and circumstances
known to officer that a party is engaged in commission
of a crime. Day v. U. S., C.C.A.Neb., 37 F.2d 80,
81.
For search warrant means reasonable ground of suspicion,
supported by circumstances sufficiently strong to
warrant cautious man in believing party is guilty of offense
charged. Shore v. U. S., 49 F.2d 519, 521, 60 App.D.
C. 137.
For arrest which must be shown as justification by defendants
in action for false imprisonment is reasonable
ground of suspicion supported by circumstances sufficient
in themselves to warrant cautious man in believing accused
to be guilty, but does not depend on actual state of case
in point of fact, as it may turn out upon legal investigation,
but on knowledge of facts which would be sufficient
to induce reasonable belief in truth of accusation. Christ
v. McDonald, 152 Or. 494, 52 P.2d 655, 658.
REASONABLE AND PROBABLE CAUSE. Such
grounds as justify any one in suspecting another
of a crime, and giving him in custody thereon.
It is a suspicion founded upon circumstances sufficiently
strong to warrant reasonable man in belief
that charge is true. Murphy v. Murray, 74
Cal.App. 726, 241 P. 938, 940.
DR 7-103 Performing the Duty of Public Prosecutor
or Other Government Lawyer.
73
(A) A public prosecutor or other government lawyer
shall not institute or cause to be instituted
criminal charges when he knows or it
is obvious that the charges are not supported
by probable cause.
Malicious Arrest
An arrest made willfully and without probable
cause, but in the course of a regular proceeding.
COMMITTED IN PRESENCE OF OFFICER. Under
statutes authorizing arrest without warrant,
when facts and circumstances occurring within
officer's observation, in connection with what, under
circumstances, may be considered as common
knowledge, give him probable cause to believe or
reasonable grounds to suspect that such is the
case. Noce v. Ritchie, 109 W.Va. 391, 155 S.E. 127,
128.
Scotch Law
A fraudulent imitation or suppression of truth, to the
prejudice of another. Bell. "Something used and published
falsely." An old Scottish nomen juris. "Falsehood
is undoubtedly a nominate crime, so much so that Sir
George Mackenzie and our older lawyers used no other
term for the falsification of writs, and the name 'forgery'
has been of modern introduction." "If there is any distinction
to be made between 'forgery' and 'falsehood,' I
would consider the latter to be more comprehensive than
the former." 2 Broun, 77, 78.
FALSELY. In a false manner, erroneously, not
truly, perfidiously or treacherously. Dombroski
v. Metropolitan Life Ins. Co., 126 N.J.L. 545, 19 A.
2d 678, 680. Knowingly affirming without probable
cause. Hicks v. State, 67 Ga.
LEGALLY COMMITTED. Accused has been committed
by magistrate who has jurisdiction to hold
examination and who has actually heard evidence
and determined probable cause exists for holding
defendant. People v. Dal Porto, 17 Cal.App.2d 755,
63 P.2d 1199, 1200.
MALICE IN FACT. Express or actual malice.
Railway Co. v. Behee, 2 Tex.Civ.App. 107, 21 S.W.
384, Hotchkiss v. Porter, 30 Conn. 414.
It implies desire or intent to injure, while "malice in
law," or "implied malice," means wrongful act done intentionally,
without just cause or excuse, and jury may infer
it as a deduction from want of probable cause. Glieberman
v. Fine, 248 Mich. 8, 226 N.W. 669, 670.
MALICE IN LAW. The intentional doing of a
wrongful act without just cause or excuse. Lyons
v. St. Joseph Belt Ry. Co., Mo.App., 84 S.W.2d
933, 944. Implied, inferred, or legal malice.
Smith v. Rodecap, 5 Ind.App. 78, 31 N.E. 479;
Bacon v. Railroad Co., 66 Mich. 166, 33 N.W. 181.
As distinguished from malice in fact, it is presumed from
tortious acts, deliberately done without just cause, excuse,
or justification, which are reasonably calculated to injure
another or others. Betts v. Jones, 208 N.C. 410, 181 S.E.
334.
MALICIOUS ACCUSATION. Procuring accusation
or prosecution of another from improper motive
and without probable cause. McKenzie v.
State, 113 Neb. 576, 204 N.W. 60, 63.
MALICIOUS PROSECUTION. One begun in malice
without probable cause to believe the charges
can be sustained. Eustace v. Dechter, 28 Cal.App.
2d 706, 83 P.2d 523, 525. Instituted with intention
of injuring defendant and without probable cause,
and which terminates in favor of the person prosecuted.
For this injury an action on the case lies,
called the "action of malicious prosecution." Hicks
v. Brantley, 29 S.E. 459, 102 Ga. 264; Eggett v.
Allen, 96 N.W. 803, 119 Wis. 625.
MALICIOUS USE OF PROCESS. Exists where
plaintiff proceeds maliciously and without probable
cause to execute object which law intends process
to subserve. Davison-Paxon Co. v. Walker,
45 Ga.App. 395, 165 S.E. 160, 163.
PRESENCE OF AN OFFICER. An offense is
committed in "presence" or "view" of officer, within
rule authorizing arrest without warrant, when
officer sees act constituting it, though at distance,
or when circumstances within his observation give
probable cause for belief that defendant has committed
offense, or when he hears disturbance created
by offense and proceeds at once to scene, or
if offense is continuing, or has not been fully
consummated when arrest is made. Kennington-
Saenger, Inc., v. Wicks, 168 Miss. 566, 151 So. 549,
551. Mantei v. State, 210 Wis. 1, 245 N.W. 683,
684.
PROBABLE CAUSE. Reasonable cause. State
v. Baltes, 183 Wis. 545, 198 N.W. 282, 284. Having
more evidence for than against. Ex parte Souza,
65 Cal.App. 9, 222 P. 869, 870. A reasonable
ground for belief in the existence of 'facts warranting
the proceedings complained of. Owens
v. Graetzel, 149 Md. 689, 132 A. 265, 267. An apparent
state of facts found to exist upon reasonable
inquiry, (that is, such inquiry as the given
case renders convenient and proper,) which would
induce a reasonably intelligent and prudent man
to believe, in a criminal case, that the accused
person had committed the crime charged, or, in a
civil case, that a cause of action existed. Brand
v. Hinchman, 68 Mich. 590, 36 N.W. 664, 13 Am.
St.Rep. 362; Cook v. Singer Sewing Mach. Co.,
138 Cal.App. 418, 32 P.2d 430, 431.
In malicious prosecution the existence of such facts and
circumstances as would excite the 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. Lunsford v. Dietrich, 86 Ala.
250, 5 So. 461, 11 Am.St.Rep. 37. A reasonable ground of
suspicion, supported by circumstances sufficiently strong in
themselves to warrant a prudent and cautious man to
believe that the accused is guilty of the offense with which
he is charged. Sanders v. Palmer, N.Y., 55 F. 217, 5 C.C.
A. 77. Such a state of facts and circumstances known to
the prosecutor personally or by information from others
VEXATIOUS. Without reasonable or probable
cause or excuse. Gardner v. Queen Ins. Co. of
America, 232 Mo.App. 1101, 115 S.W.2d 4, 7.
as would, in the judgment of the court, lead a man of ordinary
caution, acting conscientiously in the light of such
facts and circumstances, to believe that the person charged
is guilty. Keebey v. Stifft, 145 Ark. 8, 224 S. W. 396, 400.
See, also, Galley v. Brennan, 216 N.Y. 118, 110 N.E. 179,
180. Where defendant in an action for malicious prosecution
shows that before commencing the prosecution he, in
good faith, consulted an attorney of good standing and
made a full disclosure of all of the facts reasonably obtainable,
and in good faith acted upon such advice, this
of itself constitutes "probable cause." Gustason v. Speak,
85 Cal.App. 18, 258 P. 725, 726; Treloar v. Harris, 66 Ind.
App. 159, 117 N.E. 975, 976.
As justifying arrest without a warrant by one believed
guilty of felony or to be engaged in commission of a
felony, is a belief fairly arising out of facts and circumstances
known to officer that a party is engaged in commission
of a crime. Day v. U. S., C.C.A.Neb., 37 F.2d 80,
81.
For search warrant means reasonable ground of suspicion,
supported by circumstances sufficiently strong to
warrant cautious man in believing party is guilty of offense
charged. Shore v. U. S., 49 F.2d 519, 521, 60 App.D.
C. 137.
For arrest which must be shown as justification by defendants
in action for false imprisonment is reasonable
ground of suspicion supported by circumstances sufficient
in themselves to warrant cautious man in believing accused
to be guilty, but does not depend on actual state of case
in point of fact, as it may turn out upon legal investigation,
but on knowledge of facts which would be sufficient
to induce reasonable belief in truth of accusation. Christ
v. McDonald, 152 Or. 494, 52 P.2d 655, 658.
REASONABLE AND PROBABLE CAUSE. Such
grounds as justify any one in suspecting another
of a crime, and giving him in custody thereon.
It is a suspicion founded upon circumstances sufficiently
strong to warrant reasonable man in belief
that charge is true. Murphy v. Murray, 74
Cal.App. 726, 241 P. 938, 940.
