Weiden v. Weiden

*352 Fellows, J. (after stating the facts). In actions for malicious prosecution three propositions must be established: (1) The fact of the alleged prosecution and that it has come to a legal termination in plaintiff’s favor; (2) that the defendant had no probable cause; (3) that he acted from malicious motives. Thomas v. Bush, 200 Mich. 224. It is a. recognized rule that malice may be inferred from want of probable cause, but this is not a rule that works both ways. "Want of probable cause may not be inferred from jnalice. In Hamilton v. Smith, 39 Mich. 222, it was said: “And if it appear that the defendant had probable cause the action must fail, no matter how wicked or flagitious may have been the real motive. The circumstances having been such as would have justified a man of rectitude in moving in obedience to his duty as a citizen,' the law will not inquire whether he who did move was governed by base motives or not. The act in itself being proper, the bad purpose in the mind is left to the penalties of the moral law. ” We are satisfied that, in the instant case, not only has the plaintiff signally failed to establish a want *353 of probable cause, but that the .testimony affirmatively establishes probable cause. We reach this conclusion for two basic reasons: 1. That probable cause is affirmatively established as matter of law by the testimony taken before the examining magistrate and which was before us in People v. Weiden, supra, and which by agreement of counsel is made a part of the bill of exceptions in the instant case. We so held when that case was before us, and while it is not res adjudícala of the rights of the parties, we so hold now. If the facts proven establish probable cause, it is not necessary to defendant’s protection that he was familiar with all of them when he made the complaint. 18 R. C. L. p. 37. If he acts as a reasonably prudent man should act under the circumstances, he is not to be cast in damages for malicious prosecution even though the accused be innocent. Again we quote from Hamilton v. Smith, supra: “As lawful grounds may exist to justify a party in setting the criminal law in motion, although it turn out that no offense has been committed, or if committed, not by the accused,. so it follows that what is probable cause is not contingent upon the fact of the guilt of the accused. This is evident. The law itself ordains that prosecution shall be the method for solving the question whether one has committed crime or not, and as prosecution is therefore a necessary antecedent, the law would violate common sense and destroy itself if it were to say that the act of prosecuting must yet wait for knowledge of the guilt of the suspected party. “In case the information possessed is believed and is such and from such sources that the generality of business men of ordinary ‘care, prudence and discretion’ would prosecute upon it under the same conditions, there is probable cause (citing cases).” *354 The testimony of the doctor to which we have referred, clearly tending to establish murder by some one, the presence of defendant in the alley about the time the crime was claimed to have been committed, the evidence negativing the theory of robbery as a motive, the financial gain which would come to plaintiff by his adoptive father’s death, the fáct that his wife was rattling at the door of the store and trying to get her husband out of the store, the testimony of the Hunt girl that plaintiff, when in his cups, said: “There was two Steve Weidens; one Steve Weiden killed the other Steve Weiden, and there’s only one left; ’ ’ these facts, without going further, would justify a reasonably prudent, man in asking that a jury pass upon plaintiff’s guilt. We held they justified holding plaintiff for trial in People v. Weiden, supra, and we hold they justified defendant in making’ the complaint. 2. Defendant submitted the testimony to the circuit judges, and they in turn submitted it to the prosecuting attorney, who spent four weeks in an independent investigation, at the end of which time both he and Judge Brown directed defendant to sign the complaint. The rule is thus stated in Smith v. Tolan, 158 Mich. 89: “It is the settled law in this State in actions of malicious prosecution and false imprisonment that, where a prosecuting witness has in good faith fully and fairly stated all of the material facts within his knowledge to the prosecuting officer and acted upon his advice, proof of the fact establishes a case of probable cause.” . See, also, Huntington v. Gault, 81 Mich. 144; Thomas v. Bush, supra; Pawlowski v. Jenks, 115 Mich. 275; Wakely v. Johnson, 115 Mich. 285; Rogers v. Olds, 117 Mich. 368; Doty v. Hurd, 124 *355 Mich. 671; Christy v. Rice, 152 Mich. 563. In the last cited case, it was said: “The question is, What had the defendant the right to assume at the time he called upon the prosecutor the second time and was directed by him to make oath to this complaint? The prosecutor had declared to him that he would act upon his own judgment and own investigation, and he then assured him that he had satisfied himself by an investigation that there was probable cause for instituting this prosecution. It must be assumed that defendant, in swearing to this affidavit, if he himself believed the truth of the statements, was acting under the direction of the prosecutor, and had the right to assume that the prosecutor was instituting the suit on behalf of the public.” Manifestly, the accuser must honestly and fairly disclose to the prosecutor the facts and all the facts within his knowledge. There is no room in the instant case for claiming he did not. The transcript of the testimony submitted to the judges and by them to the prosecuting attorney, while not printed, is by stipulation made a part of the record and has been read by us. It contains not only testimony tending to establish plaintiff’s guilt, but it also contains the testimony of three of plaintiff’s alibi witnesses. Not only was there submitted to the judges and the prosecuting attorney testimony against plaintiff, but also testimony tending to establish his innocence. Plaintiff failed to make a case entitling him to go to the jury. Further comment is unnecessary. The judgment will be affirmed. North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred.