| Ill. | Apr 15, 1861
In the charge to the jury upon the trial of this cause, the court told them: “ What is probable cause where the facts are not disputed, is a question of law; but in this case the facts are disputed, and it is proper for the court to instruct you as to the law concerning probable cause, and the jury should find whether the necessary facts have been proved, on the part of the plaintiff, to make out a want of probable cause. If the plaintiff was cashier of the defendants, and as such cashier received money belonging to the defendants, and without the knowledge or consent of the defendants, or either of them, and against their will and consent, the said plaintiff did feloniously convert and appropriate to his own use and embezzle from the said William M. Eoss & Co., the defendants, with an intent then and there to steal the same, the said sum of one hundred and sixty-six dollars, as stated in the affidavit of said William M. Eoss, and that the said money then and there was the property of the said defendants at the time of said conversion, this would be a sufficient probable cause to justify the defendants in causing the arrest of the plaintiff; but if the jury believe, from the testimony, that the plaintiff honestly believed that he had a right to take the money, and charge it to himself, and he did so take such money and charge himself with the amount on the books of the defendants, then, even if he had guaranteed the debt of Alexander Innis, he would not be guilty of embezzlement, and such taking of the money under such circumstances, would not constitute probable cause for the prosecution of the plaintiff criminally for such taking of the money of the plaintiff from the defendants; even if the plaintiff had verbally agreed to pay the debt of his brother, Alexander Innis, and took money belonging to Ross & Co., in his possession, believing that he had a good right so to do, and made the proper entries in the book of Ross & Co., charging himself with the money so taken by plaintiff, he would not be criminally liable, and such conduct would not constitute probable cause for a criminal prosecution for embezzlement.” Now, this is a very accurate statement of the law, to enable the jury to determine whether the plaintiff had been guilty of the crime of embezzlement or not; but the court substantially told the jury if the facts did. not exist which were necessary to constitute the crime, then there was not probable cause. The law does not require that a crime should have been committed before probable cause can exist. In the first place, the court supposed a state of facts which, if true, made the plaintiff guilty of the crime charged, and told the jury if they found those facts to be true, then there was probable cause; and then, the court supposed another state of facts which, if true, showed that the defendant was not guilty, and told the jury that if they found this state of facts to be true, then there was not probable cause. This was, no doubt, inadvertent on the part of the court, for the distinction between actual guilt and a reasonable belief of guilt, as constituting probable cause or a want of it, is well stated in other parts of the charge; and were » we well satisfied with this verdict, we might perhaps assume that when the whole charge is considered together, the jury had not been misled by this inaccuracy. ||But there is one feature in this case which we are convinced could not have had its' due weight with the jury, although the court in its charge called the attention of the jury to it, and laid down the law to them very accurately on the subject. Before this prosecution was instituted, Wm. M. Ross went to Mr. Blackwell, a counselor of this court, who had for many years borne a high reputation, both as a civil and a criminal lawyer, and stated to him all the facts of the case, fully and unreservedly, and wished his advice whether to prosecute Innis civilly or criminally. Mr. Blackwell did not venture an opinion upon Ross’ own statement, but went to the store, examined the clerks and the books, and after taking time for mature consideration, advised the institution of the criminal prosecution, and himself drew up the affidavit on which it was founded. Now it is not questioned, that if this be true, and that Ross acted in good faith on the advice of Blackwell, there is the absence of that malice which is essential to the maintenance of the action. Here was everything to inspire Ross with confidence in Blackwell’s opinion and advice. The facts were carefully examined by counsel, and time taken for consideration; and certainly if ever a man was justified in proceeding with confidence on professional advice received, then was Mr. Ross so justified. Blackwell testifies that the facts were stated to him the same as they were sworn to on the examination before the magistrate, and the only thing open to dispute was the quo animo of- Innis. Upon the case thus investigated the prosecution was advised, and upon that advice the prosecution was instituted. If Ross acted in good faith on this advice, the law must protect him. If he resorted to this contrivance to cover up his malice, and to protect him from its consequences, knowing, or believing all the time, that no offense had been committed, then, indeed, he was even more guilty for having taken the course he did. But we see nothing in this record to justify this conclusion, nor do we believe the jury, deliberately intended so to find. The judgment must be reversed, and the cause remanded.
Judgment reversed.