Anderson v. Friend

• Decision Date: 31 January 1877
• Citation: 85 Ill. 135,1877 WL 9503
• Parties: LEMUEL ANDERSONv.ELIZA FRIEND.
• Court: Illinois Supreme Court

85 Ill. 135

1877 WL 9503 (Ill.)

LEMUEL ANDERSON

v.ELIZA FRIEND.

Supreme Court of Illinois.

January Term, 1877.

APPEAL from the Circuit Court of Logan county; the Hon. LYMAN LACEY, Judge, presiding.

Mr. E. LYNCH, for the appellant.

Messrs. BEASON & BLINN, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears, from this record, that appellant lost two large, fat hogs, which he supposed were stolen from his inclosure. On learning facts which led him to suppose appellee and her husband, and others, were guilty of the theft, he went to the prosecuting attorney and laid before him the evidence he supposed he had, but the prosecuting attorney advised that the evidence was not sufficient to procure a conviction. Another witness communicated to him facts which he professed to be willing to testify to, when appellant, with the witness, went to the same attorney, and the witness made his statement, whereupon the prosecuting attorney advised that the evidence was sufficient, and that a prosecution should be instituted.

Appellant then went before a justice of the peace of the county, and procured a warrant for the arrest of appellee and her husband. They were arrested, taken before the magistrate, a hearing was had, and the justice of the peace discharged them; and thereupon appellee brought this action to recover damages for an arrest where there were no reasonable or probable grounds or cause for the arrest, and averring that it was false and malicious. Defendant filed the general issue, and a trial was had before the court and a jury, resulting in a verdict for the plaintiff. Thereupon a motion for a new trial was entered, and overruled, and judgment entered on the verdict, and defendant appeals.

To recover in this class of cases, there must be malice on the part of the person starting the prosecution, and a want of probable cause for believing that the accused is guilty of the offense charged; nor is a want of probable cause shown by the acquittal of the accused. If such were the rule, but few, if any, would dare to make any effort to enforce the criminal laws of the State. To do so, would involve the prosecuting witness, wherever the prosecution failed, in vexatious litigation and loss, and none could be expected to incur such hazards. Prosecuting witnesses must be protected where they act in good faith on facts and circumstances which are such as to induce a belief of guilt in the mind of a reasonable person. This has ever been the rule of the law. The issue, then, for the jury to try is not the guilt of the plaintiff. If the defendant acted in good faith, on evidence, whether true or false, which is sufficient to create a reasonable belief that the accused was guilty...