Howard v. Felton

• Decision Date: 18 February 1963
• Docket Number: No. 9171,9171
• Citation: 379 P.2d 414,85 Idaho 286
• Parties: Chester HOWARD, Plaintiff-Respondent, v. Henry FELTON, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 414

379 P.2d 414

85 Idaho 286

Chester HOWARD, Plaintiff-Respondent, v. Henry FELTON, Defendant-Appellant.

No. 9171.

Supreme Court of Idaho.

Feb. 18, 1963.

Rehearing Denied March 18, 1963.

Henry Felton, defendant-appellant, pro se.

R. M. Whittier, Isaac McDougall, Pocatello, for plaintiff-respondent.

SMITH, Justice.

April 25, 1959, criminal complaints were filed in the justice's court of John H. Maynard, justice of the peace, at Lewiston, Nez Perce County, separately charging William H. Johnson and LaVerne F. Whitlock with selling liquor without a license, a felony as defined by I.C. § 23-938.

Appellant, Henry Felton, and his son, Warren Felton, both attorneys, were engaged as counsel to, and did, represent the accused in both cases. Johnson was acquitted. The conviction of Whitlock was reversed on appeal, see State v. Whitlock, 82 Idaho 540, 356 P.2d 492.

At the preliminary hearings of Johnson and Whitlock, respondent Chester Howard, an officer of the State Department of Law Enforcement, was a witness for the prosecution. He testified that in attempting to apprehend persons violating the state statutes pertaining to the illegal sale of liquor, he approached Johnson and Whitlock to buy liquor from them, knowing that they did not have an Idaho retail liquor license. In both instances respondent's solicitations were substantially the same, appearing from his testimony, as follows:

'Q. * * * New, on the 12th day of March, 1959, you purchased some whiskey from Mr. Johnson, did you not, here in Lewiston?

'A. Yes, sir.

'Q. At about 3 o'clock in the morning?

'A. Yes, sir.

'Q. And you sought out Mr. Johnson yourself, did you not?

'A. Yes, sir.

'Q. And went to him?

'A. Yes, sir.

'Q. He did not come to you?

'A. No, sir.

'Q. And when you sought him out, you asked him the question, 'Can you get me a bottle?' Is that true?

'A. Yes, sir.

'Q. And that was the words that you asked him, 'Can you get me a bottle?'

'A. Yes, sir.'

Following the preliminary hearings, appellant signed a complaint before justice of the peace Maynard charging respondent with the illegal sale of liquor; however, justice of the peace Maynard declined to issue a warrant on that complaint for the reason that the date of the alleged offense was erroneous.

The next day appellant submitted and filed another criminal complaint in the court of justice of the peace Maynard, charging respondent with the crime of selling liquor without a license, 'as accessory' in that respondent allegedly did solicit a person without a liquor license to sell liquor to him and did purchase such liquor, knowing that the sale and purchase was illegal.

Maynard, a member of the bar of this court for over eight years, knew at the time the complaint was filed that the charge against respondent was based upon the action of respondent in procuring the sale of liquor to him by Johnson. Before issuing the warrant, Maynard, in his official capacity, consulted the prosecuting attorney of Nez Perce County, who advised, inter alia, that if the complaint on its face alleged a public offense, it was the duty of the justice of the peace to issue a warrant. Maynard consulted the statutes involved and thereupon issued the warrant.

A preliminary hearing was held on the charge. Appellant testified at the hearing that he based the charge upon the statements made by respondent at the preliminary hearings of Whitlock and Johnson. At the conclusion of the hearing respondent's attorney moved to dismiss on the ground of insufficiency of the evidence to sustain the charge. Subsequently, the charge against respondent was dismissed.

Respondent then commenced this action for malicious prosecution. After trial without a jury, the district court entered judgment in favor of respondent and against appellant for $1,000 compensatory damages and $1,000 punitive damages, from which judgment appellant appealed.

An action for malicious prosecution, in this state, to be successful requires proof of the following requisites: (1) that there was a prosecution, (2) that it terminated in favor of plaintiff, (3) that the defendant was the prosecutor, (4) that the defendant was actuated by malice, (5) that there was want of probable cause, and (6) that damages were sustained. Russell v. Chamberlain, 12 Idaho 299, 85 P. 926; Lowe v. Skaggs Safeway Stores, 49 Idaho 48, 286 P. 616; Luther v. First Bank of Troy, 64 Idaho 416, 133 P.2d 717; Clark v. Alloway, 67 Idaho 32, 170 P.2d 425; Lowther v. Metzker, 69 Idaho 115, 203 P.2d 604. Inasmuch as the record here discloses proof of the first three requisites, the remainder of this decision will be devoted to discussion of the fourth, fifth and sixth requisites of the tort of malicious prosecution.

The action of malicious prosecution has never been regarded with favor by the courts; consequently it is hedged with restrictions which render it difficult to maintain. Russell v. Chamberlain, supra; Luther v. First Bank of Troy, supra. A plaintiff is required to sustain the burden of proving that the criminal proceeding was initiated by the defendant without probable cause. This is true even though the defendant is found to have been actuated by malice and for an improper purpose, since it is deemed good citizenry to cause the prosecution of those who are reasonably suspected of a crime. Courts reason that a defendant's personal motive should not render him personally liable for the performance of a public obligation. The existence of malice does not create even an inference that probable cause was lacking. See Prosser on Torts (2nd Ed., 1956), pp. 645 et seq.; 54 C.J.S. Malicious Prosecution § 3; Lowe v. Skaggs Safeway Stores, 49 Idaho 48, 286 P. 616; Russell v. Chamberlain, 12 Idaho 299, 85 P. 926.

The defense of advice of counsel is equivalent to a showing of probable cause. This defense generally precludes an action for malicious prosecution. Thomas v. Hinton, 76 Idaho 337, 281 P.2d 1050; Luther v. First Bank of Troy, 64 Idaho 416, 133 P.2d 717; Donaldson v. Miller, 58 Idaho 295, 72 P.2d 853. However, the advice of counsel relied upon must come from an independent, disinterested attorney. Adkin v. Pillen, 136 Mich. 682, 100 N.W. 176; Union v. United Battery Service Co., 35 Ohio App. 68, 171 N.E. 608; 34 Am.Jur., Malicious Prosecution, § 77. Here, the attorney consulted by appellant, in addition to being the son of appellant, was also associated with appellant in the defense of the criminal actions. Under those circumstances, the advice was not such as would constitute probable cause, since it could not be considered unbiased as regards the party against whom the complaint was made.

Appellant asserts, in order to negate want of probable cause, that a full disclosure to a magistrate is a complete defense in an action for malicious prosecution. As previously stated, the justice of the peace who issued the warrant for respondent's apprehension presided at the preliminary hearings of Johnson and Whitlock. He is shown to have been well aware of all the facts germane to the issuance of such warrant, but testified that in his opinion he had no discretion as to its issuance. The record shows, however, that appellant disclosed every fact within his knowledge, and that the justice of the peace issued the warrant after consultation with the prosecuting attorney. In that regard justice of the peace Maynard testified:

'Q. Now, it is a fact then, is it not, that when Mr. Felton came up on the 15th that you and he got out the code, the Idaho Code provisions, did you not?

'A. Yes.

* * *

* * *

'Q. * * * recheck the statute relating to the illegal sale of alcoholic beverages in this state?

'A. Yes.

'Q. And you and Mr. Felton then checked those statutes together and discussed them, is that correct?

'A. That is correct.

'Q. And the purpose of this discussion, of course, was to determine whether or not you would be satisfied so as to issue a warrant, isn't that true?

'A. That is correct.

'Q. * * * after rechecking the statutes * * * relating to the illegal sale of liquor and after a new complaint was then filed alleging the correct date * * * to-wit: the 25th day of April, then you were satisfied and issued a warrant?

'A. That is correct.

'Q. Yes. Now, you don't know of any single fact, do you, that was withheld by Mr. Felton?

'A. No.

'Q. * * * the filing of this complaint was based entirely upon what you and Mr. Felton and everybody else who was present at those preliminary hearings had heard?

'A. That is correct.

'Q. * * * At the time that the second complaint was filed and after you had checked the statutes relating to accessories and the sale of liquor and a new complaint was filed, you were satisfied, were you not, that both you and Mr. Felton were acting in good faith in this matter?

'A. I was satisfied that I was acting in good faith. * * *

'Q. You had every reason to believe that he was acting in good faith too, did you not, based upon what you both knew?

'A. Yes.

'Q. And being then satisfied after rechecking the statute and being further satisfied in your own mind that Mr. Felton was acting in good faith you then signed--issued the warrant?

'A. That is correct.

'Q. Yes, sir. Now, Mr. Knowlton did give you some advice in this matter too, did he not?

'A. Yes.

'Q. And Mr. Knowlton is the prosecuting attorney?

'A. Yes.

'Q. And--In other words, you didn't issue this warrant just simply because Henry Felton signed the complaint and filed it with you. You also checked with the prosecuting attorney to get his advice, did you not?

'A. Well, I believe so.

'Q. Yes. And Mr. Knowlton, the Prosecuting Attorney of Nez Perce County, advised you to the effect that if the complaint defined the crime, that the warrant would be in order, did he not? * * * I want a positive answer to that, Sir. I am going to direct your attention again to your previous deposition and particularly page nine. Now, would you please give me a definite positive statement?

'A. Yes.

'Q. That you checked with...