65 Neb. 826 | Neb. | 1902
This is an action for malicious prosecution. The district court, after a trial lasting three weeks, directed a verdict for the defendant; and plaintiff brings error from a judgment on the verdict so directed. The chief question raised is whether there Avas probable cause for the prosecution. In determining this question we have been compelled to undertake a protracted and laborious examination of an unusually voluminous and involved record. But we do not think any useful purpose would be subserved by a detailed statement of the numerous and intricate transactions out of which the prosecution arose. Nor. do we think it would be just to Mr. Bechel, who has been acquitted of the charge, to set forth at length a necessarily one-sided account of the facts and circumstances which Avere known to the prosecuting Avitness, and operated to bring about the prosecution. The question noAV is not whether he was guilty, but whether those Avho charged him Avith the offense which had undoubtedly been committed,’ at the time and under all the circumstances, had probable cause to believe him guilty. After a careful review of the evidence none of us have any doubt on this score.
It has been urged that the decision of the county judge in binding the plaintiff over to the district court on tAvo separate occasions, after two separate hearings, is conclusive that there was probable cause for the prosecution. This contention is not without support from respectable authorities. But we think the better rule is that the decision of an examining magistrate in binding over to the district court a person accused of felony is prima-facie evidence of probable cause only. It is not conclusive. Of course there is room for a distinction betAveen cases where a magistrate has a poAver of commitment only and those in which, as in onr practice, the magistrate must adjudge
Granting, however, that want of probable cause may be shown notwithstanding commitment by the examining magistrate, whether the facts adduced to that end show or fail to show want of probable cause, is a question for the court. If there is sufficient in undisputed evidence to show probable cause for the prosecution, the trial court should direct a verdict for the defendant. Dreyfus v. Aul, 29 Nebr., 191; Turner v. O’Brien, 11 Nebr., 108. It cannot matter that some or many of the facts bearing on the issue as- to probable cause are in dispute, if there are still enough established and undisputed to determine the question in point of law. The facts being determined, the question is one for the court; and if there are enough on which to base a determination without leaving anything that may be in dispute to the jury, there is nothing for the jury to pass upon. We are unanimously of opinion that such is the situation in the case at bar. The strongest point made on behalf of plaintiff is that the prosecuting witness and the officers of the defendant corporation neglected to go to
We recommend that the judgment be affirmed.
Affirmed.
26 Am. St. Rep., 123.