*1 g'34 argued raised other points
There are dis- parties do not deem but we necessary. Finding thereof now
cussion judgment be affirmed and
no error the will
it is so ordered.
BICKLEY, J., ZINN SAD- C.
LER, concur. JJ-,
BRICE, participate. J., did 494 P.2d VAN BRUGGEN.
HUGHES
No.
Supreme Mexico. of New Court
Sept. 3, 1940.
PER CURIAM. Upon consideration of motion for rehear- ing, original opinion has with- been following drawn there- substituted for.
MABRY, Justice. appellee, Hughes, pros- Plaintiff and the District Court ecuted in of Colfax County upon charge of theft of bull rake, appellant, belonging to defendant and Bruggen. Van had thereto- The accused fore been arrested issuing warrant up- from a of the Peace court Justice complaint signed by defendant. Plain- *3 tiff, action, as defendant in criminal preliminary waived examination and was regularly bound over to await action fof Court, District in which court was he thereafter, verdict, upon acquit- instructed ted. Thereafter suit filed seeking was dam- ages prose- from defendant for malicious This suit resulted a of in verdict cution. $2,500 plaintiff, appeal in favor of and this judgment. is from such verdict and Motion for at directed verdict made close plaintiff’s erroneously of case was over- put ruled. defendant his Thereafter on upon case and it is defendant’s evidence plaintiff largely rely. that would now important question presented The here is proceedings whether or not Stringfellow, F. Merriau and S. Fred C. were in fact initiated the defendant: Raton, appellant. for both of be, event, any Another is whether there in ' Morrow, Raton, evidence, Robert A. of judg- and to sustain the verdict Kiker and Anthony Albert, & and Sanchez theory all that prose- of ment on the the criminal J. Fe, appellee. Santa probable cution was without cause and was requi- Peace, of one from malice, and some two essential actuated Justice phoned the Sheriff’s that office to defendant sites. complaint. sign come in he should and rea- inferences including all facts, The support in therefrom sonably to be drawn Defendant said did not believe nec- plaintiff, are: essary Attorney; to talk to the District that deputies the Sheriff his told deputies his had two sheriff and The him, in addition that which the District country defendant store of passed by the Attorney quoted said, is they having home of that farm way out to the on their plenty “had com- known evidence to make the well plaintiff, who was brother plaint on, they and complaints were investigate instructed defendant, Attorney’s District They officeto make this com- charged brother. to the thefts other plaint.” nature of their defendant advised that he told them defendant mission We search record thoroughly and de- implements, bull one of his farm had lost termine that it discloses no 'evidence they rake, they that while there were show that defendant 'himself initiated the returned officers might look for it. The action or that he advised or counselled with rake, that dis- announced the bull later and person Attorney District other concealed, been and somewhat had mantled even, suggesting, there should be searched, premises found prosecution. Howard, addition, one Jack Hughes, Much made of statement of de- known plaintiff also associate once or appearing fendant twice rec- defendant, in the had confessed to them that he explanation why ord he did not con- together rake had stolen the Attorney directly, giving sult the District defendant, placed it dismantled and the facts after positively identifying him it. officers found The officers where could, his if rake as own ef- if he to the come asked simply fect that he against plaintiff acting if this sign a structions “of” “from” sheriff’s of- rake. Defendant said he would. were urges sup- Plaintiff their.way, evidence then continued fice. officers theory defendant was coun- Raton, their ports Dis- returning reporting to the advising with sheriff’s *4 selling and the of- Attorney upon general investiga- their trict . upon which counsel and advice he had particularly fice as to of finding tion the rely, right to rather than that legal upon no the bull rake which Howard had said be- which, Attorney District he had the longed Soon thereafter the of to defendant. honest disclosures of the fair Attorney prepared made District a criminal com- complete facts, have afforded him a against plaintiff, theft of plaint charging defense. took sent of the rake and the office it the give support plain It would be difficult to not does record
The
any
meaning
the
in view
respect. All
statements
other
in this
contention
tiff’s
initia
any
infer
the lack
showing
reasonable
of the least
evidence,
all
including
defendant,
particu
part
in aid
therefrom
tive
drawn
on the
may be
that
ences
conveyed
de
case,
larly
that
clearly shows
in view
plaintiff’s
the
ad
upon
counsel or
to defendant
the sheriff’s
the
office
fendant relied
upon
Dis
sheriff,
(the
he
Attorney
that
relied
District
had
that he
but
said
vice of the
Hughes
assumed
only,
Attorney)
enough
and these he
trict
had
on
instructions
the
his
relayed
from
office
his
boys (meaning
to have been
broth
defendant and
Attorney,
in fact.
were
er)
penitentiary
District
to send them to the
thirty-five years,
plenty
“they
that
the word “advice” with
confuses
Plaintiff
complaint
of evidence to make
on and
There is a distinc-
“instruction”.
the word
Attorney’s
were instructed
District
words.
“Advice”
the two
between
tion
complaint.”
this
to make
office
counsel,
instructions and Di-
legal
means
(See English’s
synonymous.
are
rections
private person gives
pros-
“Where a
to a
“instruct” carries an
Dictionary.) To
Law
ecuting officer information
he be-
which
obeyed, while
it is to be
implication
true,
and the
lieves to
officer in
ex-
per-
optional with
it is
means
“advice”
ercise of his
initi-
uncontrolled discretion
act on
will
whether
proceedings
addressed
son
ates
based
Downing,
v.
State
information,
or not. See
the informant
liable
advice
is not
540,
section,
P. 461.
in this
23 Idaho
under
rule stated
false,
proves
though the information
to be
counsel;
advice;
give
“Advise—to
which rea-
therein was one
and his belief
It
33,
Howard’s statement—in are to have If reliability. only fairly its law violations determining very great manner at the hazard unreasonably subjecting complaining noted distinction is to Another *6 expensive to witness the ordeal and uncer to over which counsel seems for damages tain results of suits for if convic Law look. As is in Restatement of the said obtained, not approve tions be then we a Torts, (g) 602 page Sec. at 407: justice which upon rule thwarts very sup- belief respect, “In one based upqn threshold its entrance. Few men would posed personal knowledge and based belief suit, take chance and invite such a differently treated. are though they be boldened would otherwise upon infor- based Where accusation is uphold advocate to law order. only given by person, mation a third be, very properly Their attitude '“let could reliability of important matter is policy the other do fellow it.” The informant. It is immaterial that the not, is be, unreasonably law as it should not unreasonably mistak- formant was himself to deter those who know of breaches of en; whereas an unreasonable mistake on against the law from of complaining subject part may of the accuser him to fenders. liability. Thus where accuser bases his was pointed by It out Holt more Lord charge upon person’s third identification ago two than centuries actions’ such accused, of the is that the in- it immaterial “ought favored, managed not to be but unreasonably formant acted making in great put caution.” As writer text has one hand, identification. On the other if the it: mistake, accuser had made a similar probable not have had cause for the tendency discourage “Their prosecu- is to proceedings.” of criminal initiation crime, prosecutors they expose tion for as suits, justice may civil and the love of not liability can no There be where the always strong enough be induce individu- in officer relies prosecuting his own prosecutions, when, they als commence if upon information furnished vestigation and fail, they may be-subjected expense to the than defendant or where defend others litigation, if be not damag- mulcted in fairly disclosed, himself it ant has is i Pros., pars. Newell on Mal. es.” .13-15. discretion, judg officer’s own left to the responsibility as to ment and whether there Shaw, speaking Chief in-theearly Justice prosecution. 398, See-38 shall be C.J. Gerry, case of Cloon Gray, Mass., 13 v. 25; Rice, Christy 563, v. 152 Mich. Par. 201, said: 200; Lauritsen, 116 Cox v. N.W. 126 128, 1093; 147 Malloy Minn. N.W. Chi suit, v. “This kind of which the com- cago Ry. Co., 330, etc. 34 S.D. plainant prosecution 148 in a criminal N.W. is made an damages, liable to for action at the suit
541
of,
cause,
person complained
not
be
is
making
defendant
favored;
deter men
tendency
instigating
has
it was
malice.”
actuated
law,
(Emphasis
ours)
know of breaches
who
offenders,
endangering
thereby
prosecuting
that defendant
determine
When we
community.”
peace
the order and
proceed
“instigate”
did
the criminal
not
respect
policy of the law in this
has
do,
is
ings,
inquiry
then substan
we
our
changed through the centuries. We
not
tially
very narrow field
to the
limited
expressions
support
like
and find like
have
gave facts
ascertaining whether
through
a policy
in the cases down
for
false,
whether
which
he knew to be
n
years
present
very
and to the
time.
directing or
collaborated with others
example,
very
said
For
it was
in the
recent
enough
prosecution.
It
urging
Figuccion
case of
v. Prudential Ins.
ofCo.
knowledge
passive
that there mere
America, 1938,
287,
Ky.
291,
S.W.2d
acquies
part, or
prosecution
defendant’s
on
292,
up-
“The
not look with
law does
favor
proceedings.
cence
or consent to the
prose-
damages
for malicious
suits
Md.,
502,
Herndon,
3 A.2d
See Fertitta
year,
the same
a court
cution.”. And
aof
upon the
for recent cases
120 A.L.R.
ap-
neighboring
occasion
state
enough
him
point.
it is not
that he
And
*7
century old
this
prove this
with
lan-
rule
signed
under the circum
self
(of
syllabus) :
guage
Young,
present.
stances here
Dickson v.
1, 221
208
820.
Iowa
N.W.
adoption
lax
rules
“The
favorable
“
prosecutions is
goad
means
‘Instigate’
malicious
not
‘to stimulate or
actions
** *
action, especially bad
policy of the courts.” Williams
action.’
v.
556,
‘abet’
synonyms
78
1052.
is
”. State v.
Frey, 182 Okl.
P.2d
One of its
1017,
Fraker,
143, 49
1022.
148 Mo.
S.W.
approval Delgado
cited
We
Rivera,
217,
1141, 1148,
40
when
N.M.
57 P.2d
The better rule is
v.
law:
participating
statement of the
a criminal
following
initiating or
defendant,,
informant,
as
prosecution, the
support an action
malicious
“To
for.
fairly
only to
required
disclose all the
prosecution the
must
knowledge,
within -his
and not all the
facts
place,
prose-
first
the fact
prove, in the
by the
dili
ordinary
use
facts which
cution,
was
himself
been known to him.
should
gence
.have
prosecutor
instigated,
com-
or
its
Frey, supra.
v.
Williams
finally
terminated in
mencement and that
* *
*
charge
acquittal
pre-
gathered
any
It cannot be
against
unfounded,
ferred
him
fair
any
the evidence
and reasonable
probable construction,
made
knowingly
it was
without
that defendant
reásonable
543
gave false subject. helpful upon the In UNITED re POWER CO. TAXES circumstances, need which we FOR 1937. plaintiff to discuss, upon by here relied 4549. No. malice, quite doubt- regard show we Supreme Mexico. New Court of But, purpose. assum- efficacy ful for the Sept. 16, remains ing are sufficient there still 1940. probable prerequisite,
the other lack of
cause. action, in this
While character may prob
malice be inferred from want of cause, proof probable
able cause is a
complete ele notwithstanding defense may present. of malice
ment be Del See Rivera,
gado supra. 400, v. 38 Sec. C.J. 27, citing 26 and numerous cases. cir facts know that what
We probable cause is
cumstances amount Haydel
question of law for court.
Morton, 623; Cal.App.2d 18 P.2d
R.C.L. questions presented need not
Other be disposition
considered view of our principal There evidence
this one. is no verdict,
support timely motions of de-
fendant, fact, reliance made in granted.
should have been The cause will with direction to set aside the reversed judgment grant
former verdict defendant. It is
judgment for so ordered. *8 -
BICKLEY, J., C. and BRICE and
ZINN, JJ., concur.
SADLER, J., participate. did not