Dunnington v. Loeser

• Decision Date: 01 June 1915
• Docket Number: 4290.
• Citation: 149 P. 1161,48 Okla. 636,1915 OK 407
• Parties: DUNNINGTON v. LOESER.
• Court: Oklahoma Supreme Court

149 P. 1161

48 Okla. 636, 1915 OK 407

DUNNINGTON v. LOESER.

No. 4290.

Supreme Court of Oklahoma

June 1, 1915

Rehearing Denied July 6, 1915.

Syllabus by the Court.

In an action for malicious prosecution, the question of what amounts to probable cause is one of law for the court. It is therefore the duty of the court, when evidence has been given to prove or disprove probable cause, to submit to the jury its credibility, with the instruction that certain facts amount to probable cause, or they do not, as the case may be.

In such case, to leave to the jury the question of probable cause is error.

Commissioners' Opinion, Division No. 2. Error from District Court, Alfalfa County; Jas. W. Steen, Judge.

Action by Frank Loeser against C. S. Dunnington, administrator of the estate of Carl Loeser, deceased. Judgment for plaintiff and defendant brings error. Reversed and remanded for new trial.

Parker & Simons, of Enid, and A. J. Titus and A. R. Carpenter, both of Cherokee, for plaintiff in error.

C. H Mauntel and A. C. Beeman, both of Alva, for defendant in error.

DEVEREUX C. (after stating the facts as above).

The question presented by the exceptions to the charge of the court above set out raises the question as to whether or not probable cause is a question for the jury or a question of law.

Michael v. Matson, 81 Kan. 360, 105 P. 537, is a strong authority in the case at bar. The instruction objected to in that case was as follows:

"You are instructed that, to constitute probable cause for criminal prosecution, there must be such reasonable grounds of suspicion, supported by circumstances sufficiently strong * * * to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged, and, in this connection, you are further instructed that a mere belief that an innocent person is guilty of a crime is not alone sufficient to justify * * * his or her arrest. The facts must be such as would justify an ordinarily intelligent and reasonably prudent person in entertaining such belief. Whether in this case such facts had come to the knowledge of the defendant at the time he entered the complaint against the plaintiff is a question of fact for the jury to determine from a preponderance of the evidence."

In reversing the case on account of this instruction the court say:

"As it is not the province of the jury to determine what circumstances would induce a reasonably prudent man to believe another guilty of a crime, there seems to be no purpose in the giving of an abstract instruction on the subject. * * * These abstract rules will guide the court in determining the question, but are apt to lead the jury away from their function of passing upon the evidence in support of the probative facts which the court

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