Mack v. Sharp

• Decision Date: 14 December 1904
• Citation: 101 N.W. 631,138 Mich. 448
• Court: Michigan Supreme Court
• Parties: MACK v. SHARP.

101 N.W. 631

138 Mich. 448

MACK v. SHARP.

Supreme Court of Michigan

December 14, 1904

Error to Circuit Court, Livingston County; Stearns F. Smith, Judge.

Action for malicious prosecution by Glenn S. Mack against James Sharp. Plaintiff had judgment, and defendant brings error. Reversed.

William P. Van Winkle and W. E. Scott, for appellant.

Odell Chapman and Henry C. Smith, for appellee.

MONTGOMERY, J.

This is an action for malicious prosecution. The plaintiff was, at the instance of defendant, arrested upon a charge of criminal libel. He was acquitted, brought this action, recovered substantial damages, and defendant brings error. Numerous assignments of error appear in the record, but we discuss only such as are likely to arise on a new trial.

1. The court held and instructed the jury that one could not be guilty of an offense under section 11,762, Comp. Laws, who circulates a libel. This view of the law is opposed to the authorities. 18 Am. & Eng. Enc. Law (2d Ed.) 1056.

2. The court also ruled throughout the case that in this action the defendant was not at liberty to prove that the plaintiff was in fact guilty of the criminal offense imputed to him in the prosecution instituted by the defendant. It is well established by authority that in an action for malicious prosecution it is a complete defense to show that the plaintiff was in fact guilty of the offense charged against him by defendant, and this though the proof of guilt is furnished by evidence not known to defendant when the prosecution against the plaintiff was instituted. This testimony is not in such case offered in support of probable cause, but to show that the plaintiff has suffered no wrong by his arrest. The law considers that, if a criminal is fortunate enough to escape conviction, he should rest content with his good luck, and not belabor one who suspected his guilt and acted accordingly. As was said in Newton v Weaver, 13 R.I. 617: 'The action for malicious prosecution was designed for the benefit of the innocent, and not of the guilty. It matters not whether there was proper cause for the prosecution, or how malicious may have been the motives of the prosecutor, if the accused is guilty he has no legal cause of complaint.' See, also, Threefoot v Nuckols, 68 Miss. 123, 8 So. 335; Whitehurst v Ward, 12 Ala. 264; Parkhurst v. Masteller, 57 Iowa, 478, 10 N.W. 864; Turner v Dinnegar, 20 Hun, 467; Lancaster v. McKay (Ky.) 45 S.W. 887. Inasmuch as it is essential to the plaintiff's action to show a termination of the criminal action as a basis for his suit for malicious prosecution, it is competent to establish this fact by the verdict of acquittal. Black on Judgments, � 529. But it is not conclusive evidence of the plaintiff's innocence. Id. Plaintiff's counsel cite the case of Josselyn v. McAllister, 25 Mich. 45, as sustaining the ruling of the circuit judge. It does not appear that the precise question of whether the actual guilt of plaintiff could be given in evidence as a defense was discussed in that case. It is true that testimony which might have amounted to an admission of one element of the offense was held properly excluded on the ground that defendant was not shown to have had knowledge of the fact when the prosecution was instituted by him. It was said that, 'if Josselyn acted without any knowledge or suspicion of the supposed fact, it could in no way affect his motives'--a proposition obvious enough in itself, and quite conclusive as to the admissibility of the proposed testimony in that case, for the opinion shows there were joined in that action counts for malicious prosecution and false imprisonment, and by a reference to the report of the case at a...