Cole v. Andrews
74 Minn. 93
Minn.
1898
Check Treatment
MITCHELL, J.

The facts in this case will sufficiently appear from the opinion on the former appeal. 70 Minn. 230, 73 N. W. 3.

On the second trial the court instructed the jury that the prosecution of plaintiff for larceny “was instituted, commenced or begun by the defendant”; thus taking that question from the jury, and submitting to them only the questions of malice and probable cause. In this we think the learned trial judge erred, and that he ought to have also, left to the jury the question whether the prosecution was instituted at the instigation of the defendant. On the first trial the court dismissed the action when the plaintiff rested, and what we held on the former appeal was that there was evidence to go to the jury on all the issues in the case, including the one as to whether the prosecution was commenced at the instigation of the defendant. On the second trial the court seems to have erred on the opposite extreme, in holding that the evidence on that question was conclusive against the defendant. .

The fact that he communicated the facts to the county attorney, and consulted him as to whether the acts of the plaintiff and those whom he accompanied to defendant’s farm did not subject them to criminal prosecution of some kind, and that he subsequently, at the request of the county attorney, appeared as a witness before the grand jury, and that the grand jury found an indictment for larceny against the plaintiff in whole or in part upon his testimony, do not necessarily or conclusively establish the fact that the prose*96cution of the plaintiff for the crime for which he was indicted was instituted by, or at the instigation of, the defendant. The defendant never made any complaint charging the plaintiff with the crime of larceny. There is evidence tending to prove that he never claimed to the county attorney that the plaintiff was guilty of larceny, or requested him to institute a prosecution against him for any such crime; that he merely stated to him the facts as they existed, for the purpose of- being advised in the premises as to whether , some action .could not be brought in justice court. There is also evidence tending to prove that when before the grand jury the defendant never charged the plaintiff with the crime of larceny, or urged that he should be indicted for that crime, but merely fully and fairly stated the facts as they existed.

It is always a good defense to an action of malicious prosecution to show that the defendant neither prosecuted nor instituted the prosecution. Where one in good faith merely makes to a committing magistrate, or to a grand jury, a full and truthful statement of the facts as they actually existed, and the magistrate or grand jury erroneously believes the facts constitute a crime, and issues a warrant of arrest or finds an indictment accordingly, he is not liable in damages to a party arrested or indicted; because, in such case, he cannot be said to have instituted or instigated the prosecution, for the oppression of the-plaintiff would be attributable alone to the erroneous legal conclusions of the county attorney or grand jury. Leigh v. Webb, 3 Esp. 165; McNeely v. Driskill, 2 Blackf. 259; Bennett v. Black, 1 Stew. (Ala.) 494; Dennis v. Ryan, 65 N. Y. 385; Thaule v. Krekeler, 81 N. Y. 428; Hahn v. Schmidt, 64 Cal. 284, 30 Pac. 818; Newman v. Davis, 58 Iowa, 447, 10 N. W. 852.

Upon the entire evidence, which it is neither practicable nor, expedient to discuss at. this time, we think it was a question for the jury whether the prosecution of the plaintiff was instituted at the instigation of the defendant; but, the evidence not being conclusive, the court erred in holding, as a matter of law, that the defendant prosecuted or instigated the prosecution. For this error there must be a new trial. With a view to such trial, another point made by defendant’s counsel should be noticed.

One of the defenses set up in the answer was that whatever *97defendant dideán the matter was done after having made a full presentation óf ¡all the facts to the county attorney, and in reliance and in good- faith upon the advice given him by such attorney. Apparently, in unticipation of this defense, the plaintiff in his case in chief was périnittéd, under defendant’s objection and exception, to examine the county attorney as to what statements the defendant made to him. This is claimed to have been error, for the reason that such communications are privileged, being made by a client to his attorney. G. S. 1894, § 5662.

After plaintiff rested, the defendant introduced evidence to maintain the defense referred to. If otherwise there would have been anything in the point that defendant’s statements to. the county attorney were privileged, it was certainly waived by his setting up this defense, and introducing evidence to maintain it; for it cannot be that the defendant could give his version of what he told the county attorney, and yet prevent the plaintiff from rebutting him. The order in which the evidence was introduced is not material.

But we are of opinion that the ruling of the court was correct on broader grounds. The confidential relation of attorney and client did not exist between the defendant and the county attorney. The former consulted the latter in his official capacity as public prosecutor, for the purpose of having instituted a prosecution for a public offense, or to ascertain whether the facts made a case for such a prosecution. The defendant, in making these communications, was acting merely as a citizen, in theory at least, in the interests of public justice, and in receiving these communications,, and giving advice upon them, the county attorney must be deemed to have been acting solely in his official capacity. This did not constitute the relation of attorney and client, within the meaning of the statute. Counsel cites one case (Oliver v. Pate, 43 Ind. 132) to the contrary, but we are unable to agree with the reasoning of the court in that case.

Nor does the case fall within the fifth subdivision of the section cited, which provides that “a public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.” There are no doubt cases where communications made in confidence to a public prose*98cutor, in relation to the commission of a crime, would fall within this provision. But this is not such a case. In the first place, the communications to the county attorney were not made in confidence. Further, the defendant testified fully as to all the facts, first before the grand jury, and next on the trial of the indictment, and the prosecution has terminated. And, lastly, the defendant has voluntarily disclosed in his answer in this case that he did communicate the facts to the county attorney, and he set up that fact as a defense. How the public interest would now suffer, or how it would be any breach of confidence towards the defendant to permit the county attorney to disclose what those communications were, is not apparent to us.

Order reversed, and a new trial granted.