18 S.D. 298 | S.D. | 1904
This is an appeal by the plaintiff from a judgment entered upon a directed verdict in favor of the defendant. The action was for malicious prosecution, and the principal defense relied on was that the defendant, in instituting the prosecution under which the plaintiff was arrested and tried, acted under the advice of her counsel and the state’s at
It is contended by the appellant that a malicious persecution embraces both law and fact, and that cases of that class must be submitted to the jury; but, in our opinion, this contention is untenable. There is no distinction between that and other cases, where the facts are undisputed. Whether or not the facts, when so undisputed, constitute probable cause, or whether or not, where the defendant acted upon the advice of counsel, after a full statement of the facts to him, and there is no evidence that the defendant acted maliciously or in bad faith, other than proof that the plaintiff was acquitted, the defendant is protected, are questions of law for the court. Mr. Newell, in his work on Malicious Prosecution, p. 278, says: “What is meant by the expression that probable cause is a mixed question of law and fact is, if the circumstances of the
It is contended in the case at bar that there was no proof on the part of the defendant that she acted upon the advice of counsel in good faith, believing the plaintiff to be guilty of the crime with which he was charged; but we are of the opinion that, in the absence of proof of malice, other than proof that the plaintiff was acquitted, it is the duty of the court to presume that the defendant acted in 'good faith, as actual malice and bad faith are never presumed by the court.
The evidence of Mr. Winsor, who was the regular attorney of the defendant, clearly shows that he had full knowledge of all the facts, and that he, in connection with the defendant, fully communicated the same to the state’s attorney, and upon these they advised the defendant that the plaintiff could be convicted of the crime charged, and that he thereupon prepared a complaint in the action, which the defendant verified and filed. Upon this evidence, in the absence of proof that the defendant in fact acted maliciously or m bad faith, we are of the opinion that the court was clearly right in directing a verdict in her favor.
It is further contended that the facts stated to counsel and the state’s attorney were not sufficient to constitute a criminal offense, but, in the view we have taken of the case, an examination of this question for the purpose of determining whether or not there was probable cause for the prosecution of the plaintiff is not necessary, and hence we shall not review the evidence upon that question in this opinion. It is sufficient for
Counsel for the appellant have devoted a portion of their brief to the discussion of questions relating to false imprisonment, but, as the action in this case is clearly one for malicious prosecution, we do not deem a discussion of these questions necessary at this time.
Finding no error in the record, the judgment of the circuit court and order denying a new trial are affirmed.