69 Iowa 562 | Iowa | 1886
The plaintiff and all the defendants, except S. D. Potter, reside in J ones county. Potter is a resident of Greene county. In June, 1874, Potter purchased about fifty head of calves in Jones county, which he drove to his farm in Greene county. The defendant Foreman claimed that four of the number belonged to him, and that they had been stolen from him, and he instituted a suit for their recovery before a justice of the peace in Greene county, and, on the trial, he established his right to them. Potter claimed that he .had purchased said calves from plaintiff, and an indictment was subsequently returned by the grand jury, in which he was accused of the larceny of the property; but, upon the trial of the indictment, he was acquitted. lie then instituted this suit, alleging that the defendants had conspired together to institute said prosecution, and that it was commenced maliciously, and without probable cause.
Plaintiff has always admitted that he sold and delivered to Potter seven of the calves, which the latter drove to Greene county. In October, 1874, Foreman visited Potter’s place, and, on his return to Jones county, he informed plaintiff that he had found four calves which had been stolen from him in Potter’s possession, arad that the latter claimed that he had purchased them from plaintiff, and he demanded payment for them. In a few days afterwards he again called upon him, accompanied by Potter, and the latter stated to plaintiff that the four calves which Foreman claimed (and which he had then recovered in the proceedings before the justice) were of the number of those sold him by plaintiff. In neither of these interviews did plaintiff make any question as to the identity of the calves claimed by Foreman with those sold by him to Potter, and in the last interview he settled with the parties, and gave Potter his note for their value. He, in effect, and perhaps in express terms, admitted that he had in possession, and had sold to Potter, the calves which had been stolen from Foreman; but this admission was based on the representations of Potter as to their identity.' In both of-the interviews he claimed to have purchased them from a man who was a stranger to him, and who stated that his name was Smithl He stated to them that on the day before he sold the calves to Potter he was in the store o'f Coppees & Derr, in Olive, and that while there he inquired of the proprietors of the store whether they knew of any cattle for sale, and that the man Smith was in the store at the time, and asked him what kind of cattle he desired to buy, and that he replied that he wanted young cattle; and that Smith then stated that he had five calves that he wanted, to sell, and that they were on the commons some distance from the town; and that he then went with Smith, accompanied by his brother, Nelson'Johnson, who had gone to the store with, him, to where the calves were, and there contracted with Smith
When the prosecution was commenced, then, the defendants knew (1) that the property had been stolen by some person; (2) that by the plaintiff’s own admission he had the stolen property in his possession soon after the larceny; and
That the first two facts, standing alone, would have afforded probable cause for instituting the prosecution, cannot be denied; but it equally apparent that, if plaintiff’s story in explanation of his possession of the property is true, no ground for the prosecution existed. The question, then, whether there was probable cause depends upon whether the facts and circumstances of the transaction, as they were known and understood by the defendants, would have warranted an ordinarily prudent and cautious man in the belief that plaintiff’s story as to how he acquired the possession was false.
The answer to the question depends, then, upon the conclusion or deduction which should be drawn from the numerous facts and circumstances of the case, and we think it was the province of the jury to draw that conclusion. The court could not say, as a matter of law, that the story was so unreasonable or improbable as to be unworthy of belief. It was properly left to the jury, and we cannot interfere with their finding.
The district court gave the following instruction to the jury: “If the jury find that the defendants learned before the prosecution complained of was commenced, by statements which'they might reasonably and prudently rely upon and believe, and did rely upon and believe, that Foreman’s calves
This instruction, except the italicised clause, was given at defendant’s request, that clause being added as a modification of the instruction as asked. As modified, the instruction submits to the jury for their determination the question whether defendants had knowledge when the prosecution was commenced that, when plaintiff made the admission that four of the calves which he sold to Potter belonged to Foreman, he was laboring under a mistake as to that fact. If the calves claimed by Foreman were not purchased by Potter from plaintiff, Potter may have known at the time that plaintiff made the admission by mistake, and it would have b.een entirely proper to submit that question, as to him, to the jury. But plaintiff did not claim that he was laboring under a mistake when he made the admission until after the prosecution was instituted, and there is no evidence tending to show that any of the defendants except Potter had any knowledge or information on the subject until he made the claim. As to them, therefore, the instruction submits to the jury a question on which there was no evidence whatever, and, as there was evidence from which the jury might have found that plaintiff was mistaken when he made the admission, they may have been prejudiced by it. We have so often held that it is reversible error to submit to the jury a mate
“ (7) By a reasonable explanation is meant a statement of alleged facts which are consistent, rational, and likely to occur in transactions similar to ’that attempted to be explained.
“ (8) An explanation of the possession of recently stolen property which is improbable, and unlikely to be true, in the ordinary transactions of men, whereby the possession of personal property is. changed from one to another, is not, in law, a reasonable explanation, and no person is bound to accept such explanation, and desist from a prosecution of one who is found to have been in possession of stolen property immediately after the larceny thereof.
The court, however, on its own motion, gave the following instructions:
“ (6) To constitute probable cause for criminal prosecution, there must be such reasonable grounds of suspicion, supported by circumstances sufficiently strong in themselves, to warrant an ordinarily cautious man in the belief that the person accused is guilty of the offense charged. The law does not require a certainty that an accused person is guilty before another may proceed against him. It is enough that a felony has been committed, and the circumstances are such as to lead a reasonably prudent and cautious man to believe honestly, and without prejudice, that the accused is guilty thereof.
Conceding that the instructions asked by the defendants correctly express the law, we are clearly of the opinion that they were not prejudiced by the refusal of the court to give them. As applicable to this case, the propositions embodied in them are — First, that the possession of the stolen property by plaintiff afforded probable cause for the commencement of the prosecution, unless he had given a reasonable explanation of such possession, and, second, if the facts stated by him in explanation of his possession of the property were not consistent, or such as might reasonably be expected to occur in such a transaction, the explanation was not reasonable, within the meaning of the law, and defendants wei’e not bound to accept it, or desist from the ¡prosecution. It may be conceded that neither of these propositions is stated, m express terms, in the instructions given, but, in substance, both are given. In the sixth instruction given,
“ (23) The association not being incorporated, its members are individually liable for its unlawful acts, if any, if they took part therein; and, though the association was organized legally, its powers could have been used for an unlawful purpose.
“ (21) You are instructed that if you find from the evidence that the association undertook or aided to prosecute plaintiff upon the charge of stealing the calves of defendant Foreman, and that said prosecution was without probable cause, and with malice, that the defendants in this action are liable for the said acts of said association only so far as they participated therein for that purpose; and before you can hold the defendants, or any of them, liable for the acts or proceedings of said association in relation to the prosecution of plaintiff, you must find that they, either by vote or* by voluntary contribution of money, or other means, participated in the prosecution of Johnson; that is, each defendant is liable, if at all, for the part said association took in said prosecution, only for what he did, or intentionally aided in doing, in furtherance of the prosecution of Johnson by said association.”
These instructions hold that, if the prosecution was instituted by the association, the individual defendants could be held liable for its action in instituting it only in case they participated in or aided the action. In that respect they are undoubtedly correct. We held this on the former appeal. But malice ill the institution of the prosecution is an essential element of the cause of action. To render the individual members of the association liable for the action of the body, they must not only have consented to or aided in it, but, iii- doing so, they must have acted with malice, that is, they must have become parties consciously to the wrongful
“ (26) Whether or not the defendants, or some of them, did, before instituting the proceedings, made a full, fair and honest statement to the district attorney, of all the material facts bearing upon the guilt of plaintiff, of which they had knowledge, and which they could have ascertained by reasonable diligence, and whether, in commencing such prosecution, the defendants acted in good faith, upon the advice of said district attorney, are questions of fact to be determined
In our opinion this instruction is erroneous. One who seeks-the advice of counsel with reference to the commencement of a criminal prosecution is bound to act in good faith in the matter. Unless he does this, he will not be protected from liability on the ground that he acted upon the advice given him. lie is required to make to the counsel a full and fair statement of all of the material facts known to him. If he has a reasonable ground for believing that facts exist which would tend to exculpate the accused from the charge, good faith requires that he shall either make further inquiry with reference to those facts, and communicate the information obtained to the counsel, or that he shall inform him of -his belief of their existence, in order that he may investigate with reference to them, and take into account, in forming his opinion, the information attained with reference to them. But he is not required to do more than this. He is not required to institute a blind inquiry to ascertain whether facts exist which would tend to the exculpation of the party accused. But if he honestly believes that he is in possession of all of the material facts, and makes a full and fair statement of those facts to the counsel, and acts in good faith on the advice given him, he ought to be protected. This, it seems to us, should be the rule when the advice of private counsel is relied on. But there are more cogent reasons for applying it where the communication is made to the public prosecutor. In criminal cases, that officer is the representative of the state. He is required, not only to prosecute indictments which are found, but it is his duty to assist in the
■ The judgment of the district court will be reversed, and the cause remanded.
Reversed.