Hughes v. Van Bruggen.

• Decision Date: 03 September 1940
• Docket Number: No. 4439.,4439.
• Citation: 105 P.2d 494,44 N.M. 534
• Parties: HUGHESv.VAN BRUGGEN.
• Court: New Mexico Supreme Court

44 N.M. 534

105 P.2d 494

HUGHES

v.VAN BRUGGEN.

No. 4439.

Supreme Court of New Mexico.

Sept. 3, 1940.

Appeal from District Court, Colfax County; Irwin S. Moise, Judge.

Action by J. T. Hughes against William Van Bruggen for malicious prosecution. From judgment for plaintiff, the defendant appeals.

Judgment reversed, with direction to set aside the former verdict and judgment and grant judgment for defendant.

In malicious prosecution action, what facts or circumstances amount to probable cause is question of law.

F. S. Merriau and Fred C. Stringfellow, both of Raton, for appellant.

Robert A. Morrow, of Raton, and Kiker & Sanchez and Anthony J. Albert, all of Santa Fe, for appellee.

PER CURIAM.

Upon consideration of motion for rehearing, the original opinion has been withdrawn and the following substituted therefor.

MABRY, Justice.

Plaintiff and appellee, Hughes, was prosecuted in the District Court of Colfax County upon the charge of theft of a bull rake belonging to defendant and appellant, Van Bruggen. The accused had theretofore been arrested upon a warrant issuing from a Justice of the Peace court and upon complaint signed by defendant. Plaintiff, as defendant in the criminal action, waived preliminary examination and was regularly bound over to await the action of the District Court, in which court he was thereafter, upon instructed verdict, acquitted. Thereafter suit was filed seeking damages from defendant for malicious prosecution. This suit resulted in a verdict of $2,500 in favor of plaintiff, and this appeal is from such verdict and judgment.

Motion for directed verdict made at close of plaintiff's case was erroneously overruled. Thereafter defendant put on his case and it is upon defendant's evidence that plaintiff would now largely rely.

The important question here presented is whether or not the criminal proceedings were in fact initiated by the defendant. Another is whether there be, in any event, evidence to sustain the verdict and judgment on the theory that the criminal prosecution was without probable cause and was actuated by malice, two essential requisites.

The facts, including all inferences reasonably to be drawn therefrom in support of plaintiff, are:

The sheriff and two of his deputies passed by the country store of defendant on their way out to the farm home of the brother of plaintiff, who was well known to defendant, to investigate complaints of other thefts charged to the brother. They advised defendant of the nature of their mission and defendant told them that he had lost one of his farm implements, a bull rake, and that while they were there they might look for it. The officers returned later and announced that the bull rake, dismantled and somewhat concealed, had been found upon the premises they had searched, and that in addition, one Jack Howard, an associate of plaintiff Hughes, also known to defendant, had confessed to them that he and plaintiff together had stolen the rake of defendant, dismantled and placed it where the officers found it. The officers asked defendant if he would come in and sign a complaint against plaintiff if this were his rake. Defendant said he would. The officers then continued on their way, returning to Raton, reporting to the District Attorney upon their general investigation and particularly as to the finding of the bull rake which Howard had said belonged to defendant. Soon thereafter the District Attorney prepared a criminal complaint against plaintiff, charging theft of the rake and took or sent it to the office of a Justice of the Peace, and some one from the Sheriff's office phoned to defendant that he should come in and sign the complaint.

Defendant said he did not believe it necessary to talk to the District Attorney; that the Sheriff or his deputies had told him, in addition to that which the District Attorney is quoted as having said, that they “had plenty of evidence to make the complaint on, and they were instructed by the District Attorney's office to make this complaint.”

We search the record thoroughly and determine that it discloses no evidence to show that defendant himself initiated the action or that he advised or counselled with the District Attorney or any other person suggesting, even, that there should be a prosecution.

Much is made of the statement of defendant appearing once or twice in the record in explanation of why he did not consult the District Attorney directly, giving him the facts after positively identifying the rake as his own if he could, to the effect that he was simply acting upon instructions “of” or “from” the sheriff's office. Plaintiff urges that the evidence supports their theory that defendant was counselling and advising with the sheriff's office upon which counsel and advice he had no legal right to rely, rather than upon that of the District Attorney which, had he made fair and honest disclosures of the facts, would have afforded him a complete defense.

[1] The record does not support plaintiff's contention in this respect. All the evidence, including all reasonable inferences that may be drawn therefrom in aid of plaintiff's case, clearly shows that defendant relied not upon the counsel or advice of the sheriff, but that he relied upon his instructions only, and these he assumed to have been relayed from the office of the District Attorney, as they were in fact.

Plaintiff confuses the word “advice” with the word “instruction”. There is a distinction between the two words. “Advice” means legal counsel. Instructions and Directions are synonymous. (See English's Law Dictionary.) To “instruct” carries an implication that it is to be obeyed, while “advice” means it is optional with the person addressed whether he will act on such advice or not. See State v. Downing, 23 Idaho 540, 130 P. 461.

“Advise-to give advice; to counsel; Long v. State, 23 Neb. 33, 36 N.W. 310. It is different in meaning from instruct; People v. Horn, 70 Cal. 17, 11 P. 470; or persuade; Wilson v. State, 38 Ala. 411.” Bouvier's Law Dictionary, Volume 1, Page 155. (Emphasis ours)

It is not difficult to appraise defendant's statements that he “acted on instructions from the sheriff's office” as meaning simply that if his contemplated action in signing the complaint was upon direction of the District Attorney, about whose opinion upon the matter he had first inquired before signing, he would sign it.

[2][3] It would be difficult to give the statements any other meaning in view of the lack of any showing of the least initiative on the part of defendant, and particularly in view of the information conveyed to defendant by the sheriff's office that the District Attorney had said that he (the District Attorney) had enough on the Hughes boys (meaning the defendant and his brother) to send them to the penitentiary for thirty-five years, and that “they had plenty of evidence to make the complaint on and were instructed by the District Attorney's office to make this complaint.”

“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 informant 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. ***

“In order to charge a private person with responsibility for the initiating 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 that the information furnished by him upon which official acted was known to be false.” (Emphasis ours). Restatement of the Law of Torts, Par. 653, Subsec. g.

See also same section at pages 382-384 for further and helpful discussion of what constitutes “initiating” criminal proceedings.

It cannot detract from the rule as above so clearly stated to say that the informant may himself even sign the complaint which puts in motion the prosecution. We know that under our practice any one may sign a criminal complaint, upon information and belief, if not upon his own knowledge. We know that as a practical matter, many times complaints are signed by peace officers or members of the prosecutor's staff who have no actual knowledge of the crime. Often the person who claims to have been the victim of the offender is asked to sign the complaint. This adds nothing to the efficacy of the prosecution certainly, but it is done in many cases, perhaps, in order to enlist the interest and cooperation of the person most likely able to give testimony in behalf of the state, and whose testimony in many such cases may be indispensable.

In this case, defendant signed upon direction of the District Attorney, we must hold, though he never talked directly with such officer.

[4] Some point is made by plaintiff of the fact that defendant was not careful to make investigation to ascertain whether the rake found was in fact his own. It seems that the fact that defendant was not able to exactly identify the rake as his own was largely the ground for the directed verdict in the criminal case. It is enough to point out, in answer to this contention, that the sheriff reported to both the District Attorney and defendant the finding of the rake and a confession from one Howard that he and the plaintiff Hughes had themselves stolen and secreted the same. Defendant knew that Howard had many...