117 Wis. 608 | Wis. | 1903
The first assignment of error argued by the appellant is upon the refusal to direct a verdict in favor of the defendant and to set aside the negative answers to the questions in the special verdict inquiring whether the defendant had made a full and fair statement of all the facts and circumstances to the district attorney of Florence county, whether he was advised by the district attorney before swearing to the complaint that the plaintiff was guilty of obtaining money under false pretenses, and whether he acted upon the advice of the district attorney in good faith. The motion to direct a verdict was predicated upon the contention that the evidence of such advice was undisputed. Upon an examination of the record, we find that the defendant testified categorically to submitting the matter fully and fairly to the district attorney; that the district attorney advised him that the prosecution ought to proceed, and prepared a complaint which he requested the defendant to swear to before the justice of the peace; and that he (the defendant) did act upon such advice. Indeed, his testimony is to the effect that, after laying the facts before the district attorney, the latter took up the prosecution as a public and official matter; defendant doing nothing further except to swear to the complaint and testify as a witness. All of these facts are also sworn to with directness by the district attorney’s assistant, who himself prepared a draft of complaint and warrant based upon defendant’s statement, which was adopted by the district at-
Of course, that the action for malicious prosecution cannot be maintained against one who, before moving it, fully and fairly submitted all the facts and circumstances within his knowledge to an attorney at law, and was by him advised in good faith that they constituted guilt and warranted him
Another assignment of error is predicated on the fact, apparent on examination of the verdict, that the court did not submit any question as to whether defendant was in fact actuated by malice in moving the prosecution against plaintiff, and the jury has not found that he was. It is elementary law that the action for malicious prosecution can be maintained only when the defendant was actuated by malice and acted without probable cause to believe the accused guilty. Spain v. Howe, 25 Wis. 625; Collins v. Shannon, 67 Wis. 441, 446, 30 N. W. 730; Messman v. Ihlenfeldt, supra; Strehlow v. Pettit, 96 Wis. 22, 28, 71 N. W. 102; Eggett v. Allen, 106 Wis. 633, 637, 82 N. W. 556; Lauterbach v. Netzo, 111 Wis. 326, 332, 87 N. W. 230. Public policy requires freedom and safety for the mover of criminal prosecutions, to the end that the guilty may be brought to trial and punishment; hence liability for damages caused thereby to t'he innocent has been hedged about by limitations more stringent than in the ease of almost any other act causing damage to another. In recognition of the duty of an individual to aid in the vindication of the criminal law, one is protected from liability if he acts honestly and in good faith for that purpose (that is without malice), although the facts known to him might not have been such as to satisfy another of the guilt of the accused. On the other hand, in recognition of the public interest that a prosecution should be moved whenever the facts are such as to induce belief of guilt in the average mind — one of ordinary intelligence and prudence — it is ruled that no one shall be liable for instituting prosecution under such circumstances, however much he may be actuated by malice. Hence, in establishing this cause of
Error is assigned on refusal of instruction to the general effect that the jury might consider the exasperation caused by the loss of the money as one of the circumstances in deciding the question as to the effect of the facts upon the mind of an ordinarily prudent man. The instruction requested was the same approved by this court in Spear v. Hiles, 67 Wis. 361, 30 N. W. 511, and, on the authority of that case, should have been given. Whether its refusal of itself would necessitate reversal, we need not decide, as that result is inevitable on other grounds.
Plaintiff was permitted, over objection and exception, to introduce a letter from the employment agent, Richards, as an admission that he, as such agent, hired six teams from Devereux & Small. The letter was written some two or three weeks after Richards had fully executed and completed his agency to hire teams for defendant. The admission of such
Error is assigned upon rejection of evidence from the mouth of the district attorney’s assistant of statements made to him by the district attorney that he deemed the prosecution proper. We are at a loss to understand the theory on which such offer was made. Certainly an expression of opinion to any one other than defendant, except perhaps as a messenger, could he of no materiality. The district attorney’s state of mind was not significant under any of the questions in the special verdict, hut merely whether he gave such advice to defendant as to justify the latter in believing plaintiff guilty. That the attorney expressed a certain opinion to some one else was not competent evidence that he also expressed it to defendant.
None other of the assignments of error seem to demand discussion in this opinion. They relate to details of the trial not likely to be presented upon another. For the errors already designated, the judgment must be reversed. We cannot order the verdict to be corrected by substituting affirmative in place of negative answers to the questions relating to advice of counsel, and that judgment for defendant be entered upon the corrected verdict, for no motion was made to the trial court requesting such action.
By the Gourt. — Judgment reversed, and cause remanded for a new trial.