Brinsley v. Schulz

Maeshall, J. In this class of cases one of the elements necessary to plaintiffs right to recovery is want of probable •cause for the commencement of the alleged malicious prosecution. If the evidence, in the most favorable view thereof in plaintiffs favor which it will reasonably bear, fails to establish that sufficiently to warrant a reasonable belief in its existence, it is the duty of the court, upon a motion being made therefor, to direct a verdict in defendant’s favor. One ■of the most efficient ways of negativing a -prima facie showing in that regard and' establishing affirmatively probable •cause is to prove that the prosecution was commenced under the advice of counsel, particularly of the projDer prosecuting officer, after a full statement to him of all the facts known to the defendant. It makes no difference in such a case whether the facts supposed to exist do so or not; if there is an honest belief in such existence and the supposed facts are fully and fairly stated to counsel to obtain proper guidance in the mat [429] ter, and -upon his advice as to the sufficiency of the same the-prosecution, is in good faith commenced, that is enough. Such circumstances when fully established show, as a-matter of' law, absence of malice and presence of probable cause, precluding any liability for malicious prosecution. Messman v. Ihlenfeldt, 89 Wis. 585, 62 N. W. 522; Small v. McGovern, 117 Wis. 608, 94 N. W. 651. If such were not the law, there would be so much risk in instituting criminal prosecutions that crime to a great extent would probably go unpunished. Few men would malie complaint against a wrongdoer and take the chances of being-mulcted in damages for malicious prosecution if it should finally turn out" by the verdict of the jury, or otherwise, that the accused could not he convicted. It is essential to good government- that one who has probable cause to believe another has committed a criminal offense may, as regards liability to that other, put the proper instrumentalities in motion for such other’s punishment if he is in fact guilty. It is just as essential to good government that the judgment of men sufficiently learned in the law to be entitled to practice-the profession thereof, deliberately given upon the facts as-to any situation, that they involve criminal responsibility,, should be deemed probable cause for commencing the proper-action to enforce such responsibility. Applying the foregoing to the record in this case, it seems the learned trial court was justified in directing the verdict in respondents’ favor. As we understand the evidence, it is. undisputed that they made a full statement of all the facts-within their knowledge to the attorney for the institution whose money it was supposed had been misappropriated by appellant ; that such attorney pronounced his conduct embezzlement, and advised respondents to lay the whole matter before the prosecuting officer of the county for such action as he-might think best; that following that suggestion they made a full statement of all the facts within their knowledge to such [430] officer, and were advised by bim tbat appellant was a proper subject for prosecution for embezzlement; and tbat sucb officer visited a justice of tbe peace witb tbem and there drew; or dictated to another who drew, tbe complaint whereby tbe prosecution was instituted. Counsel for appellant insist tbat tbe proof failed to show conclusively tbat all facts material to tbe matter known to respondents were stated to tbe district attorney. Tbat seems to be based on tbe theory tbat there were sucb facts, which neither respondents nor counsel testified, specifically, were brought to tbe latter’s attention. Tbe record shows tbat Newberry testified in general terms tbat when be made Hie complaint be believed tbat Brinsley bad embezzled tbe money; tbat be fully and fairly stated all tbe facts to tbe district attorney and followed bis advice in tbe matter. Respondent Schulz testified, substantially, thus: We went to tbe district attorney’s office and stated tbe case fully to bim and upon bis recommendation and advice obtained tbe warrant for tbe arrest. I stated fully all the facts within my knowledge at tbat time. Upon tbat statement tbe district attorney advised tbe making of the complaint. It was perfectly competent to testify in tbat general way. If there were any facts within respondents’ knowledge material to tbe matter, which they did not state to tbe district attorney, appellant’s counsel should have shown tbat by cross-examination or in some other proper way. As tbe evidence stood when tbe motion to direct tbe verdict was made, there was tbe undisputed testimony of both defendants, as indicated. Under those circumstances it would have been plain error for tbe court to deny the motion for a verdict in respondents’ favor. By the Court. — Tbe judgment is affirmed.