Hill v. Palm

Wagneb, Judge, delivered the opinion of the court. This was an action for malicious prosecution. The petition alleges that the defendant wilfully, maliciously, and without probable cause, caused the respondent to be prosecuted for the offence of larceny, before the recorder of the city of St. Louis. The petition contains two counts: the first is for an arrest and prosecution on the 29th day of March, 1862; the second, for an arrest and prosecution on the 3d day of April, 1862. On the first arrest, respondent was discharged on account of the failure of the appellant to prosecute ; on the second arrest, a prosecution was had, and the [20] recorder, after taking the case under advisement, again discharged him. There were exceptions taken to the giving of instructions in the court below for the respondent; but they appear to have been abandoned here, and are not assigned for error. The only real question involved, and presented for our determination, is the action of the court in refusing instructions asked for on the part of the appellant. The first instruction prayed for and refused by the court is, in effect, that if the appellant had good cause to believe that the respondent had taken or received his goods, or personal property, without his consent, with the intent to convert the same to his (respondent’s) own use, then the appellant had good and reasonable causé to make the complaint, and the jury should find for him ; and the fact that the appellant stated the facts to the city attorney, and that the city attorney advised that the offence committed was larceny, and the fact that the recorder took time to advise upon the case after hearing the evidence, <are facts tending to prove that the defendant was instigated by good motives, and had just and reasonable cause to make the complaint.' This instruction asserts two separate and independent propositions. ' The first part is ingeniously framed with a view of making it conform to the evidence, and then applying it to the offence of larceny; but it is greatly wanting in the essential descriptive elements which constitute that of-fence ; nor is it helped by reference to the thirty-eighth section of R. 0. 1855, p. 579, for that section only makes the offence larceny where the property severed and taken amounts in value to five dollars; and no witness testified in this case that the property alleged to be taken amounted to that sum. The offence charged against the respondent was larceny, and it was not competent, in support of probable cause, to show that he was guilty of another and different offence. On the second point, that appellant acted under the advice of counsel; how far this may go to establish probable cause for the prosecution, is perhaps a question not quite settled. [21] It is laid down in Stone v. Swift, 4 Pick. 393, that if the party “ did not withhold any information from his counsel, with intent to procure an opinion that might operate to shelter and protect him against a suit; but, on the contrary, if he, being doubtful of his legal rights, consulted learned counsel with a view to ascertain them, and afterwards pursued .the course pointed out by his legal adviser, he is not liable to this action notwithstanding his counsel may have mistaken the law.” In Williams v. Van Meter, 8 Mo. 339, this court held, that in actions like this it would be permitted to show, that in good faith, and upon a full representation of facts, a party was advised by counsel that a prosecution was warranted. But what diligence was -to be used in ascertaining and obtaining the facts, in order to make full representation, was not spoken of, nor commented on, as it was not necessary to the decision of the case. We take the rule to be, that, to enable a party to justify or shield himself under the advice of counsel, he must show that he communicated to such counsel all the facts bearing upon the guilt or innocence of the accused, which he knew, or by reasonable diligence could have ascertained; and he must not omit- to state to his counsel a fact well known to him, but which he honestly supposed was not material — 1 Hill. Torts, 480 ; Ash v. Marlow, 20 Ohio, 119 ; Ross v. Inness, 4 Law Reg. 281, n. s. The evidence in this case fails entirely to show that appellant made such a disclosure of facts to his counsel as to bring him within the exemption of the law. The attorney, in his testimony, says that appellant stated the fact to him, that he wrote out the statement of facts, and on that statement he made- the charge of larceny; that he acted on his own judgment; appellant did not know whether the proper charge was ■ receiving stolen goods, or larceny. Here everything is left to vague inference and implication. He stated the fact — what fact ? Did he tell all he knew [22] bearing on the guilt or innocence of the accused, or which by reasonable diligence he could have ascertained? There is. no answer to this inquiry; yet, before he could take advantage of the advice of counsel as a defence,- he must answer this question in the affirmative. The second instruction is essentially the same as the first part of the first instruction, and is obnoxious to the same objections; except the last clause, which declares as matter of law that, upon the evidence, the appellant had probable cause to make the complaint against the respondent. This was asking the court to withdraw the whole case from the consideration of the jury, and to declare that the respondent could not recover. Probable cause is said to be “ a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offence with which he is charged” — Foshay v. Ferguson, 2 Denio, 617; Ash v. Marlow, 20 Ohio, 119; Jack v. Stimpson, 13 Ills. 701; Richey v. Bean, 17 Ills. 63. The question of probable cause is composed of law and fact; it being the province of the jury to determine whether the circumstances alleged are true or not, and of the court to determine whether they amount to probable cause — 2 Greenl. Ev. § 454; 1 Hill. Torts, 481. It therefore falls within the province of the jury to investigate the truth of the facts offered in evidence, and the justice of the inference to be drawn from such facts ; whilst at the same time they receive the law from the court, that, according as they find the facts proved or not proved, and the inferences warranted or not, there was* reasonable and probable ground for the prosecution, or the reverse; and this rule holds however complicated and numerous the facts may be—Broom’s Leg. Max, 75; Johnstone v. Sutton, 1 T. R. 544; Blanchford v. Dod, 2 B. & Ad. 179 ; James v. Phelps, 11 Ad. & El. 483; Michell v. Williams, 11 Mees. & W. 205 ; 2 Phil. Ev. 570, and notes, ed. 1859. [23] The facts being contested, the court decided rightly in leaving the' matter with the jury, with instructions as to what constitutes probable cause. The third instruction embodies, in different language, precisely the same thing asserted in the first propositions of the first and second instructions, and it is unnecessary to consider it. "We have not been able to perceive any error in the ruling of the court in refusing to give instructions; but, after the above instructions were refused, the court, at the instance of the appellant, gave the' following: “ 6. The plaintiff charges the defendant with prosecuting him (the plaintiff)-, for larceny, falsely, maliciously, and without reasonable or probable cause for said prosecution; the plaintiff must therefore prove, to the satisfaction of the jury, that the defendant did prosecute the plaintiff on a charge of larceny; that the charge was false; that the defendant was instigated by malice against the plaintiff; that he made the charge without reasonable or probable cause to believe the plaintiff guilty; and, unless all this be proved to the satisfaction of the jury, they will find for the defendant.” After the giving of the above instruction, we cannot see on what ground the appellant complains. It would have been impossible to have framed it more favorable to him, or more rigid and severe against the respondent. It required the most clear and satisfactory proof, on the part of the respondent, of every allegation inserted in the petition. Two juries have passed on this case, and each gave a verdict for respondent, and we see no sufficient reason for our interference. The judgment is affirmed. Judge Holmes concurs; Judge Lovelace absent.