Jonasen v. Kennedy

• Decision Date: 07 February 1894
• Citation: 39 Neb. 313,58 N.W. 122
• Parties: JONASEN v. KENNEDY.
• Court: Nebraska Supreme Court

39 Neb. 313

58 N.W. 122

JONASEN

v.KENNEDY.

Supreme Court of Nebraska.

Feb. 7, 1894.

Syllabus by the Court.

1. In an action for malicious prosecution, in order that reliance upon the advice of counsel may operate as a defense, it must be made to appear that, before instituting the prosecution, the defendant had made a full, fair, and true statement to such counsel of all the information in his possession, and that he instituted the prosecution in good faith, relying upon such advice.

2. The evidence to establish such defense must show what facts, information, and circumstances were communicated to counsel, and it is not competent for a witness to testify that he related all the circumstances, without stating what they were; the inference as to what circumstances would constitute a proper disclosure being for the jury, and not for the witness, to draw.

3. It is not error for the court to refuse an instruction submitting such a defense to the jury, where there is no competent evidence tending to show that a true and full statement had been made to counsel.

4. Where the criminal charge made by defendant against plaintiff was for the larceny of a ring, and the evidence tended to show that a ring which defendant believed to be the one stolen was found in plaintiff's possession, but there were no facts or circumstances, other than the possession of the ring, pointing towards plaintiff's guilt, and it was not shown how long the theft had occurred before the ring was found in plaintiff's possession, it was not error to charge the jury that the mere fact that the defendant had lost a ring by theft, and that he suspected or believed that the ring found in plaintiff's possession was the ring which he had lost, was not of itself sufficient to constitute probable cause for the arrest of the plaintiff.

5. It is not error to charge the jury that probable cause is a reasonable ground for suspicion, supported by circumstances sufficiently strong to warrant an impartial and reasonably cautious man in the belief that the person accused is guilty of the crime with which he is charged, where, by other instructions, the jury is told what facts, under the evidence in the case, if found by the jury, would constitute probable cause, or want thereof.

6. Error cannot be predicated upon the giving of an instruction substantially similar to one requested by the party seeking to reverse the judgment.

7. It is not error to refuse an instruction confining the jury, in determining whether or not there was probable cause, to the information in defendant's possession when he instituted the prosecution, and excluding facts subsequently coming to his notice, when there was no evidence tending to show that any of the facts relied upon to establish a want of probable cause were not known when the prosecution was instituted.

8. It is not prejudicially erroneous to sustain an objection to a question proper in itself, when, in the course of the examination of the same witness, he is permitted to answer questions substantially similar in their nature.

Error to district court, Douglas county; Doane, Judge.

Action for malicious prosecution by George W. Kennedy against Soren Jonasen. Plaintiff had judgment, and defendant brings error. Affirmed.Hall, McCulloch & English, for plaintiff in error.

Smith & Cobb, Miller & Dick, George S. Smith, and J. S. Miller, for defendant in error.

IRVINE, C.

Kennedy recovered a judgment against Jonasen for $500 and costs, for malicious prosecution. This judgment Jonasen seeks to reverse. The action grew out of the following state of facts: Jonasen was a jeweler in Omaha. At some time, not definitely appearing from the evidence, a diamond ring had been stolen from the top of a show case in Jonasen's place of business, where it lay with other jewelry which he was showing to some one, ostensibly a customer. He reported the loss of this ring to the police authorities. The 16th of November, 1889, Kennedy visited two or three jewelry stores in Omaha, seeking to have some jewels reset. His testimony tends to show that his business consisted in traveling over the country selling jewels, especially diamonds, generally to individual purchasers, but sometimes to dealers. One of the jewelers whom he visited reported his action to the police. Two officers went to the store of Mr. Van Cott, which had been one of the places visited; and, while they were making inquiries of Van Cott in regard to the transactions reported to them, Kennedy entered, and, overhearing a portion of the conversation, stated to the officers that he was probably the man they were inquiring about. At their request he accompanied them to the police station. Jonasen was sent for. A number of diamonds and a quantity of jewelry were found on Kennedy's person. They were placed upon a table, and when Jonasen entered he identified a particular ring as that which had been stolen from him. The diamond in this ring had a flaw in it, described by the witnesses as a “small nick.” This was called to Jonasen's attention, he stating that his diamond was perfect. Scales were brought, and the diamond weighed. The scales showed that it weighed less than Jonasen's. As to the amount of difference, there is a conflict in the evidence. The diamond was subsequently weighed upon other scales, all disclosing a weight less than that of Jonasen's diamond. A complaint was sworn to by Jonasen, charging Kennedy with the larceny of his ring, and Kennedy was arrested and imprisoned for several hours, when he was released on bail. When the time came for a preliminary examination, Jonasen refused to testify positively that the ring found in Kennedy's possession was the one which had been stolen from him. The prosecuting officer then dismissed the case. Jonasen testifies that Kennedy was not the man to whom he was showing the jewelry at the time the ring was stolen. Two witnesses--men engaged in business in Omaha--testified that they called at the police station, and, before the complaint was made, assured Jonasen that they had known Kennedy for a number of years, that they had reason to believe him honest, and that his business was as he claimed it to be. Jonasen contradicts one of these witnesses absolutely, and says that he had no conversation with the other until after the arrest was made. There is also testimony tending to show that, when the scales developed the difference in weight of the diamonds, Jonasen remarked, in effect, that he did not believe that Kennedy came by the stone honestly, and was going to make him prove how he got it. We think that this statement of the evidence sufficiently answers Jonasen's assignment of error that the court erred in refusing to direct a verdict for the defendant.

The defendant asked the following instruction, which was refused: “If the jury believe from the evidence that Assistant County Attorney Shea was made acquainted with all of the facts affecting the question of the guilt of the plaintiff in this case, which were known by the defendant in this action at the time the complaint was filed, and that, after being made so acquainted with the material facts, the assistant county attorney drew the complaint, which was afterwards sworn to by the defendant in this action, upon the advice of said attorney, the presumption of malice is rebutted, and the action for malicious prosecution will fail, and you will find for the defendant.” In order that the defendant in an action for malicious prosecution may be protected from liability because of following the advice of counsel, it must be made to appear that, before instituting the prosecution, he made a true, full, and fair statement of all the facts upon which the complaint was based, was thereupon advised that he had grounds for prosecution, and that, in good faith, he acted solely upon that advice. Dreyfus v. Aul, 29 Neb. 191, 45 N. W. 282; Turner v. O'Brien, 5 Neb. 542. The evidence was not sufficient to warrant the jury in finding such a state of facts. Jonasen's testimony fails entirely to show what was said to the prosecuting attorney, except as follows: “What was said in his presence about the circumstances surrounding this case? Ans. I...