120 P. 171 | Wyo. | 1912
Lead Opinion
This is a proceeding in error for the review of a judg-nient rendered’upon the’ ’general verdict- of "a jury in'-'-'ah action for'malicious prosecution. On or about the 15th day of October, 1908, the plaintiff below, Christopher C.-Bu’gher, was arrested upon a criminal warrant issued by a justice of the-peace and brought before said justice to answer a complaint filed’by-the defendant below, Mark"A. Boyer, . charging that on or -about the 7th day of August, 1908, the plaintiff unlawfully, willfully and purposely entered upon certain lands of one Julia Compton and severed from 'the soil certain growing grass, being the product growing ’thereon, the property of said Julia Compton. The hearing was continued upon the application of the prosecuting’ attorney on account of the absence of witnesses, until some time in November. The plaintiff gave bail for his appearance, and at the time fixed for the hearing by the order of ■continuance lie appeared ready for trial, whereupon the prosecution was dismissed by the prosecuting attorney and the plaintiff was discharged. Thereupon this action • was brought, and it resulted in a verdict and "judgment in favor of the plaintiff for $125 damages and costs.- The section of the statute under which the plaintiff was prosecuted provides among other things that “whoever unlawfully enters upon the lands of another and severs from the soil any product or fruit growing thereon, the property of another,” shall be fined in any sum not exceeding one hundred dollars, to which may be added imprisonment in the county jail for not more than three months. (Rev. Stat. 1899, Sec. 4995; Comp. Stat. 1910, Sec. 5839.)
It is undisputed that the only basis for the- criminal charge against the plaintiff was the fact that on or about the date alleged in the- complaint he had cut and removed the hay grown upon certain land generally referred to in the evidence as two contiguous forty-acre tracts or respectively as the "north’forty- and the south forty, the larger
It is conceded in the testimony that there is more or less uncertainty and confusion in the surveys in that locality, for the reason that no stone or monument marking the government survey is to be found in the township within which the land is situated, and but one such stone or monument in the township south of it; and it appears that a petition for a re-survey by the government had been signed by the plaintiff and others. Mr. Gatchell testified substantially that while he could not state that his survey and the plat aforesaid were accurate, he believed the same to be approximately correct. The plaintiff claims to have a practical knowledge of the subject of land surveying, and testified that the result of a survey made by him of his homestead before making final proof corresponded as well as he could wish with the land he was in possession of; and that the survey shown on the plat aforesaid (defendant’s exhibit one) placed the west boundary line of his homestead about fifty-four rods farther east than it should be located. According to his testimony, he believed his improvements aforesaid, including the hay meadow, to be • located upon his homestead as described in his patent, but he stated that
Some time prior; to 1907 plaintiff’s housé had been removed by him from its original location, and the defend- ■ ant ahd two ■ or three other witnesses testified that the plaintiff explained said act by the statement that he had moved the house so that it would be upon his own land; but the same witnesses testified that after its removal the house remained located upon the same forty-acre tract, though' closer to the line claimed by the defendant to be the west line of plaintiff’s homestead. The'plaintiff testified that he made no such statement to the defendant or any other witness or person, and that no reason existed for the making of such statement, for he believed at all times that the house was upon his homestead. In the year 1904, for 'the purpose of preparing a plat to be filed with the state engineer showing the location of certain land embraced in a desert' entry of the plaintiff’s wife and a ditch constructed or proposed to be constructed for the irrigation of that land, ■the plaintiff furnished to Mr; Gatchell, the county surveyor, a rough pencil draft of a plat of such land and ditch, upon which was also indicated by the plaintiff the location of •his homestead, the north forty-acre tract of which adjoined on the south the west forty of said desert entry, but such draft did not show the line of the fence aforesaid dr the county road. That paper was introduced in evidence as tending to show that thereby the plaintiff had designated the location of his homestead substantially the same as represented upon defendant’s exhibit one with relation to the land upon which the hay was cut. . In connection with the said paper a certified copy of'the plat made therefrom, as filed with the state engineer, and another plat for the same purpose' and similarly filed, made by Mr. Gatchell .from a survey of the ditch made by him, were introduced
It appears that the defendant had at times resided upon some land owned or claimed by his wife, situated about two miles from the premises in question, and that for the period of four or five years he had been familiar with these premises. It also appears that the - relations between the plaintiff and the defendant were not friendly. The defendant had been a witnessdn support of a contest instituted by his nephew against the desert entry of the plaintiff’s wife.
In August, 1908, Mrs. Compton, then residing in Buffalo, the county seat of the county wherein the lands are located, was informed by her brother that he had seen the plaintiff engaged in cutting the hay, with a rifle attached to the mowing machine, and that at that time the hay had been cut upon about four or five acres of the land. She thereupon requested the defendant to consult an attorney for the purpose of recovering the hay. The defendant consulted Mr. Griggs, the prosecuting attorney of the county, and the latter suggested that a civil suit would be too expensive, in view of the small quantity of hay that had then been cut, and advised the defendant to procure further information. In October of the same year, shortly before filing the criminal complaint, the defendant in the meantime having visited the premises and discovered that all of the hay had been cut upon the meadow and removed therefrom, again consulted Mr. Griggs, who then suggested and advised the criminal proceeding and prepared the complaint, requesting, however, that the defendant submit the complaint to Mr. Bennett, another attorney, who he would ask to assist him in the matter, stating as the reason for doing so that he was then very busy. The defendant took the complaint to Mr. Bennett and consulted with him about it, whereupon the latter also advised that the criminal prosecution would hold; and the defendant reported to Mr. Griggs what Mr. Bennett had said, and inquired if he should get Mrs. Compton to sign the complaint, but was advised that as he knew the facts he could sign it just as well as she could. He then took the complaint to the justice of the peace, signed and filed it and procured the issuance of the warrant. It áppears that both Mr. Griggs and Mr. Bennett knew, whether the fact was communicated
1.. It is contended that as the criminal prosecution was-dismissed, for the reason that Mrs. Compton Ijad not. been
To maintain an action for malicious'prosecution it is necessary for the plaintiff to establish: (i)That the prosecution complained of was instituted without probable cause. (2) That the motive in instituting it was 'malicious. (3) That the prosecution has terminated in the plaintiff’s favor, as by his acquittal or discharge in the case of a criminal prosecution. The concurrence of a want of probable cause and malice is essential. Legal malice is shown when it appears that the prosecution‘was instituted from any improper or wrong motive; ’ arid it may be inferred from the want of probable cause, though that inference is not a necessary one. The want of probable cause cannot, however, be inferred from any degree of malice. When, therefore, the existence of probable cause is established the defendant is entitled to judgment.
. The existence of probable 'cause involves the consideration of what the facts are and what may reasonably be deduced from the facts. Hence, it is a mixed question of law and fact. • If the facts are not in dispute the question is'- for the court, but upon disputed facts the jury must be left to pass under proper instructions. (Cooley on Torts, 181.) In Stewart v. Sonneborn, 98 U. S. 187, 194, Mr.'justice Strong, delivering the opinion of the court,-quoted approvingly the following- statement' of .the' doctrine found in Sutton v. Johnston, 1 T. R. 493: “The question of probable
With reference to the province of the court and jury respectively in determining the existence or want of probable cause, the result of the authorities in this country is stated in 26 Cyc., pages 106-109, as follows: “Primarily what' constitutes probable cause is a question of judicial opinion. What facts, and whether all or sufficient undisputed facts, constitute probable cause is therefore determined exclusively by the court. The general rule is that where there is a substantial dispute" as to what the facts are, it is for the jury to determine what the truth is and whether the circumstances relied on as a -charge or justification are sufficiently established, and for the court to decide whether they amount to probable cause. According to the general, but not the universal, opinion, it is error to leave it to the jury not only to determine the facts but also whether they constitute probable cause; the court, not the jury, should draw that inference. The court may take a special verdict and determine the question or probable cause thereon as a matter of law, or it may instruct the jury- hypothetically within the range of facts which the evidence tends to
The question is well considered in a recent Washington case in discussing the contention that no want of probable cause was shown, notwithstanding that the court had submitted the issue of probable cause to the jury to be determined as a fact instead of deciding the question as a matter of law. We quote from the opinion: “No very definite rule can be laid down in this class of cases, for the issue of probable cause is sometimes to be decided as a matter of law; at other times, to be decided as a question of fact, as stated in some of the cases. The last hypothesis is not strictly accurate. When not determined as a matter of law, it is considered rather as a mixed question of law and fact; that is to say, the facts being disputed, the court should declare the law as applied to the facts of the particular case, and leave it to the jury to say whether the facts as found by them bring the party accused within the rule of probable cause.” The statement of the law found in Cooley on Torts (3rd. Ed.) is' then quoted in the opinion, including the following: “As to what facts are sufficient to show probable cause is a question of law for the court, and whether such facts are proved by the evidence is a question for the jury. ‘The court should group in its instructions the facts which the evidence tends to prove, and then instruct the jury that, if they find such facts to be established, there was or was not probable cause, and that their verdict must be accordingly.’ It is not competent for the court to give to the jury a definition of probable cause, and instruct them to find for or against the defendant according as they may - determine that the facts are within or without the definition.” As to the. case then before the court it was said: “In the case at bar, the facts were disputed, and there is much room for difference of opinion. The instructions of- the court were within the rule laid down by Judge Cooley.. They are singularly explicit, and,- after defining probable cause, -the court, by hypothetical reference
In the case at bar the defendant' relied for a showing of probable cause upon the fact that he obtained and acted upon the advice of the prosecuting attorney and other counsel. The general rule is that when one takes the advice of counsel learned in the law before commencing a prosecution, and places before such counsel all the facts, and acts upon his opinion in good faith, proof of the fact makes out a case of probable cause, provided the disclosure appears to have been full and fair, and not to have withheld any of the material facts. (Cooley on Torts, 183; Burdick’s Law of Torts, 254.) While the advice of counsel honestly obtained and acted upon in good faith tends to rebut the charge of malice in instituting the prosecution, it does so principally for the reason that it overcomes the inference of malice that might follow from the want of probable cause. But such advice when acted upon in good faith is held to amount to a complete defense to the action chiefly on the ground that it has the effect of establishing the existence of probable cause. As the question of probable cause is one for the court to determine when the facts are undisputed, it is proper to direct a verdict for the defendant where, upon the undisputed facts, it appears that he had made a full and fair statement of the facts to counsel, believing them to be true, and had acted in good faith upon the advice of such counsel in instituting the prosecution. (El Reno Gas & Elec. Co. v. Spurgeon, (Okl.) 118 Pac. 397; Davis v. McLaulin, 122 Mich. 393; King v. Power Co., 131 Wis. 575; Huntington v. Gault, 81 Mich. 144; R. R. Co. v. Dorsey, 59 Md. 539.) Had that been the situation in’ this case we would agree with counsel for plaintiff in error that the trial court committed réversible error in denying'the motion for a ’directed verdict. But in our opinion the' evidence was' such as to require its' sub
It is true that it is undisputed that the prosecuting attorney dismissed the criminal proceeding for the reason that he and assistant counsel had reached the conclusion that the fact that Mrs. Compton was not in possession rendered it improbable that a conviction could be secured, and that the fact that she had merely made a homestead entry without being in possession at any time was known to both counsel before they advised the prosecution.' But that would not protect the defendant unless he had made a full and fair disclosure to counsel of all the material facts, for it does not follow from the fact that the prosecution was dismissed for the reason stated, that counsel would have advised the criminal proceeding if they had known all the facts, should it be found that the defendant had not fully and fairly stated such facts. It may be conceded that defendant was not bound to repeat to counsel facts which he knew to be already within their knowledge, it appearing that in giving the advice such facts were taken into consideration. But to entitle the defendant to the protection of the advice as a complete defense it was necessary for him to show that he discloséd all the facts which he was bound to disclose; and if he withheld any such facts, the dismissal of the prosecution for the reason that counsel had arrived at a different conclusion with reference to the legal effect of a fact which they knew and had considered when advising the prosecution would not establish the defense based upon such advice.
Although the plaintiff offered no evidence to show what facts were or were not disclosed by the defendant to his counsel, there is' a substantial conflict in that particular between the testimony of the defendant and that of Mr. Griggs, the prosecuting attorney. It is clear that all the material facts within the knowledge of the defendant were not disclosed by him to Mr. Bennett and that his defense
Another fact in dispute, and this between the evidence of the plaintiff and the defendant, was whether the plaintiff had made previous statements to the effect that when he moved his house he did so for the purpose of locating it upon his own land, which statement, if made, would lead to the inference that he knew that the house was not on his land. The statement made by the defendant to Mr. Bennett that the plaintiff had admitted that the land in question was not his own, is supported only by the testimony of the defendant and some of his other witnesses to th.e effect that the plaintiff- had made the statement above mentioned explaining the removal of his house. The plaintiff having positively denied the making of such statement, whether he did so state or not, was a question for the jury, and a belief in his testimony in relation to that matter would necessarily discredit the testimony of the defendant and the other witnesses, so that it might be found that the defendant had stated a fact to counsel which he did not believe, or had no reason to believe, to be true..
Not only were some of the facts disputed, but there is nothing in the evidence to show that the defendant' had
We have alluded to'the evidence as to the plat made by the plaintiff for the use of Mr. Gatchell in the preparation of a formal plat of Mrs. Bugher’s desert entry and ditch, and explained that its effect as showing the knowledge or belief of the plaintiff concerning the lines of his homestead was a question of -fact for the jury. Without referring to other facts and circumstances disclosed by the evidence bearing upon the question of the good faith of the defendant in acting upon the advice of counsel, we are satisfied for.the reasons above stated that the motion for a directed verdict in favor of the defendant was properly overruled.
2. Exception is taken to the following instruction: “You are instructed that the defendant in this case alleges in his
That instruction was numbered 18 and was evidently intended as an explanation of the one immediately preceding it, which stated in general terms the effect of the advice of counsel as follows: “If the jury believe from the evidence that the defendant stated fully and fairly all the facts and circumstances in relation to the criminal prosecution’to the prosecuting attorney of Johnson county, and to Alvin Bennett, attorney-at-law, or either of them, and that they or either of them advised him to institute criminal proceedings, and that the defendant in good faith acted upon such advice, then the plaintiff cannot maintain his action, whether such advice was correct or not and whether the defendant in the criminal prosecution was guilty or not.”
The objection urged against the 18th instruction is that it erroneously required that' the defendant should have
The English doctrine seems to be that when it is shown that the prosecutor had not taken reasonable care to inform
In the case cited from Ontario the facts were that the plaintiff was the tenant of the defendant’s farm and that he had used some expressions showing his intention not to pay the defendant his rent and that he had made a bill of sale of the property on the farm to his sons. He stated these facts to his solicitor and upon his advice instituted a prosecution against the plaintiff for disposing of his property with intent to defraud his creditors. He had made no inquiry as to the date of the bill of sale or the circumstances under which it was given, and the date thereof was not known to the defendant or his solicitor when the information was.laid. It turned out that the bill of sale had been made some months before the date of the lease, and was not therefore a transfer of property which could possibly have been made for the purpose of defrauding the defendant. The trial judge held that although the defendant had communicated to the solicitor the facts then known to him, yet that inasmuch as he had not taken reasonable care to inform himself of' the' date of the bill of sale, a fact
The instruction here complained of seems to be sustained by the weight of authority; and in our opinion it expresses the better rule to be adopted in such cases. We do not think it can reasonably be held that such a rule will discourage desirable prosecutions for the violation of the crim.inal laws, through fear of liability to an action for malicious prosecution. Where the only motive is to bring a public offender to justice, a prosecutor is usually sufficiently protected by the necessity of showing malice, as well as a want of probable cause, in order to maintain the action for malicious prosecution, for, in the absence of actual malice or an' indirect motive, it is not likely that a jury will infer malice from the want of probable cause unless the showing as to probable cause is so slight as to render the prosecution unexplainable except upon the theory that it was induced by malice. The proof of malice in the case at bar was ample without such inference. Such an instruction as the one now under consideration we hold, therefore, to be proper where the facts warrant it. The necessity or propriety of giving it must largely depend upon the facts- of the particular case. If it was not warranted in this case for the reason that the defendant knew or had been informed of all the material facts, it could not have misled the jury and was therefore not prejudicial. Moreover, a similar instruction was given to which no exception was reserved, and as to which the record suggests, though not dearly showing the fact, that it was requested by the defendant. We refer to instruction numbered 16, which stated
■3. It is contended that the court should have excluded as incompetent the plaintiff’s testimony relating what he had stated in the presence of the defendant and the register and receiver of the land office- as to the land which he claimed as his homestead, and the replies of the register and receiver respectively. The testimony was competent and properly admitted as tending to show the defendant’s knowledge that the plaintiff claimed the land in question as a part of his homestead and that the register and receiver of the land office had recognized that claim on his part and assured him that his homestead was all right and was where he claimed it was until proven differently by the government, and as tending also to show what the plaintiff’s understanding or belief was as to his right to cut the hay in question. If the plaintiff intended in good faith when making his homestead entry to describe the land actually settled upon and occupied by him, but through errors in government survey and no fault of his own had erroneously described the land, then, at least in the absence of intervening adverse rights, there would seem to. be some authority for the assertion that he could hold what he had occupied and improved through a proper proceeding for that purpose, though we do not assume to decide what his rights might be under those circumstances. (See Leitner v. Hodge, 5 Land Dec. 105; Jarvis v. Wash, 18 L. D. 297; Trainor v. Stitzel, 7 L. D. 387; In re Gill, 8 L. D. 303; U. S. Rev. Stat., Secs. 2369; 2370.)
4. Mrs. Julia Compton was called as a witness on behalf of the defendant and testified upon her direct examination that she made a homestead entry April 29, 1908, on Powder River, Johnson County, Wyoming, and she identified the receiver’s duplicate receipt which was issued at the time of making the said entry, whereupon such receipt was introduced in evidence. On cross-examination, over the ob-
5. The plaintiff testified that at the time of his arrest he brought several witnesses with him to testify in his behalf and what his expenses attending the hearing of the criminal case amounted to, including the expense of said witnesses. It is contended that it was error to admit such
6. The only remaining contention is that it was error to permit the plaintiff to testify concerning the survey which he made of his homestead without proof of his competency as a surveyor. While it appears that he did not claim to be a surveyor by profession, he testified that he was a practical surveyor, and we think the proof sufficient as to his knowledge of the subject and his experience in making surveys to permit him to testify what the result of his survey was. So far as it was material the accuracy of the survey, and whether the plaintiff had made and acted upon it in good faith, were for the jury to determine. While the title to the land was incidentally involved, it was not the ultimate fact to be adjudicated.
Finding no reversible error in the record the judgment will be affirmed. Affirmed.
Dissenting Opinion
('dissenting).
In my opinion a new trial should be granted in this case. If the criminal prosecution had been commenced without the advice of counsel, I think the evidence on the question of probable cause for the prosecution was sufficient to sustain the verdict and judgment; but I am also of the opinion that the defense, that the prosecution was not only advised but suggested by the county and prosecuting attorney after he was in possession of all of the material facts in the matter, was established by the great preponderance of the evidence. When he advised the bringing of the 'action and when he prepared the information he was not only informed by Boyer but had previous information that Bugher claimed the land and that he had his garden, orchard and other improvements on land that Boyer claimed was included in the Compton homestead entry. He knew of the dispute and that both parties claimed to be entitled to the same land. He knew that Mrs. Compton was not and never had been in actual possession. He had prepared a notice in her behalf notifying Bugher to remove his improvements from the land she claimed under her entry. He was informed of the facts upon which Mrs. Compton based her claim; and the fact, if it was the fact, that Bugher had stated he would hold the land if he had to split a forty to do it, was but an assertion of his claim. And the statement of the register and receiver that his homestead was where he claimed it until the government proved otherwise was a mere opinion. The material facts appear to me to have been fully and fairly stated to the county attorney, and there is no question as to his advising the prosecution. Boyer did not go to him for the purpose of instituting a criminal action, but for advice. He followed the- advice he received, and in my opinion on the evidence in this case he should be protected thereby and that the judgment should be reversed.