Archer v. Cachat, 34540

• Decision Date: 23 May 1956
• Docket Number: No. 34540,34540
• Citation: 165 Ohio St. 286,135 N.E.2d 404
• Parties: , 59 O.O. 369 ARCHER, Appellee, v. CACHAT, Appellant.
• Court: Ohio Supreme Court

Page 286

165 Ohio St. 286

135 N.E.2d 404, 59 O.O. 369

ARCHER, Appellee, v. CACHAT, Appellant.

No. 34540.

Supreme Court of Ohio.

May 23, 1956.

J. Stewart Ake and Harry W. Schmuck, Canton, for appellant.

Herschel Kriger and C. E. Hunter, Canton, for appellee.

PER CURIAM.

One of the fundamental rules of the law relating to actions for malicious prosecution is summarized clearly in the following excerpt from 3 Restatement of the Law of Torts, page 386:

'G. Influencing a public prosecutor. A private person who gives to a public official information of another's supposed criminal misconduct, of which the official is ignorant, obviously causes the institution of such subsequent proceedings as the official may begin on his own initiative, but giving such information or even making an accusation of criminal misconduct does not constitute a procurement of the proceedings initiated by the officer if it is left entirely to his discretion to initiate the proceedings or not. Where a private person gives to a prosecuting officer information which he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this section even though the information proves to be false and his belief therein was one which a reasonable man would not entertain. The exercise of the officer's discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings.

'If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible and a prosecution based thereon is procured by the person giving the false information. In order to charge a private person with the responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated expressed by direction, request, or pressure of any kind was the determining factor in the official's decision to commence the prosecution or tht the information furnished by him upon which the official acted was known to be false.'

The following similar statement appears in Prosser on Torts, page 865:

'If the defendant merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an...