146 Mich. 489 | Mich. | 1906
Willis Gurden, aged 21 years at the time of the trial of this case, was arrested upon a warrant issued on February 9,1905, for maliciously injuring a church by breaking one window glass of the value of $1, etc. He was committed to jail for trial, in default of bail, and on February 11th the justice dismissed the case, and released the prisoner, at the request of the prosecuting attorney. This action for malicious prosecution was commenced against the defendant herein, who made the complaint upon which the warrant was issued. The cause was tried by jury, and the trial resulted in a verdict and judgment for the defendant, upon which the plaintiff has brought error.
The plaintiff’s counsel claimed that the prosecution was sought by the defendant to compel payment for the broken window, that defendant knew the breaking was uninten
It is contended that the court instructed the jury that mere belief that the plaintiff committed the offense charged was sufficient cause to make a defense in the present action. We think that the charge is- not open to this criticism. The court charged the jury that:'
“ Now as to advice of counsel. Notice has been given here that this defendant acted upon advice of counsel. That will be a question for you to determine. It may perhaps turn out that the complainant instead of relying upon his own judgment has taken the advice of counsel learned in the law and acted upon that. This should be safer and more reliable than his own judgment, not only because it is the advice of one who can view the facts calmly and dispassionately,. but because he is capable of judging of the facts in their legal bearings. A prudent man is therefore expected to take such advice; and when he does so and places all the facts before his counsel, and acts upon his opinion, 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. But the advice must be that of a person accepted and licensed by the courts as one learned in the law and competent to. be adviser to clients and to the courts; and if one chooses to accept and rely upon the opinion and advice of a justice of the peace or other layman, he may do so in aid of his own judgment, but it cannot afford him any protection. You will recall that Esquire Walsh was both an attorney and justice of the peace. Moreover, when he places himself under the guidance of counsel, if-facts subsequently come to his knowledge which seem to be important, it is his duty to communicate these to counsel if he expects to rely upon his advice as a justification in the steps subsequently taken.”
This was all that was said. Counsel for the plaintiff proffered the following requests:
“ In order that advice of counsel should be a protection to the defendant, he must have acted honestly, and, where the facts given are all consistent with the reasonable theory of the innocence of the party, and the prosecutor
“ The advice of counsel is no protection for a party who acts maliciously and knows that the party whom he is prosecuting is not guilty, and further knows that all of the acts which the party against whom he complains has been guilty of are all consistent with the natural innocence of the accused, and if he proceeds under such circumstances, advice of counsel is no protection, and he would be liable for the damages done.”
These correctly state the law, and should have been given or the substance incorporated in the charge.
The judgment is reversed, and a new trial ordered.