Michael v. Matson

• Decision Date: 11 December 1909
• Docket Number: 16,213
• Parties: GRACE MICHAEL, Appellee, v. O. E. MATSON, Appellant
• Court: Kansas Supreme Court

105 P. 537

81 Kan. 360

GRACE MICHAEL, Appellee, v. O. E. MATSON, Appellant

No. 16,213

Supreme Court of Kansas

December 11, 1909

Decided July, 1909.

Appeal from Harvey district court; PETER J. GALLE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MALICIOUS PROSECUTION--Probable Cause a Question of Law--Erroneous Instruction. In an action for malicious prosecution the question of what information is sufficient to warrant a reasonably prudent man in believing another guilty of a crime is one of law, and it is substantial error to submit it to the jury. An instruction that in order for probable cause for an arrest to exist the facts must be such as would justify an ordinarily prudent person in entertaining a belief in another's guilt, and that whether such facts had come to the knowledge of the defendant at the time he caused the arrest of the plaintiff is a question for the jury to determine, is likely to be understood by the jury to mean that they are to decide not only what information the defendant had but whether it was enough to justify a reasonable belief in the plaintiff's guilt. Such an instruction, unless accompanied by a clear and accurate statement of what specific facts under the circumstances of the particular case would, if found to exist, be sufficient under the law for that purpose, is materially erroneous.

2. MALICIOUS PROSECUTION--Probable Cause a Question of Law--Erroneous Instruction. Probable Cause. What constitutes probable cause for an arrest is a question of law, and if a complaining witness believed upon reasonable grounds that the accused was guilty it is not material, in an action against him for malicious prosecution, whether he believed that probable cause existed in a legal sense, unless as bearing upon the question of malice.

3. MALICIOUS PROSECUTION--Probable Cause a Question of Law--Erroneous Instruction. Same. It is not necessary in order for probable cause for an arrest to exist that the accuser shall believe that he has sufficient evidence to procure a conviction of the accused.

4. EVIDENCE--Communications to a Public Prosecutor--Privilege. Communications made by a complaining witness to the prosecuting attorney concerning his knowledge of matters relating to the probable guilt or innocence of the defendant are privileged, and can not be given in evidence over his objection in an action against him for malicious prosecution.

Frank L. Martin, for the appellant.

S. D Amidon, D. M. Dale, and Jean Madalene, for the appellee.

OPINION

MASON, J.:

O. E. Matson, while mayor of Burrton, verified a complaint charging M. M. Michael and Grace Michael, his wife, with violating the prohibitory law, and caused their arrest. The county attorney refused to prosecute and the case was dismissed. Grace Michael brought action against Matson for malicious prosecution and recovered a judgment for $ 600, from which he appeals.

We think the verdict must be set aside for the reason that the instructions were so worded as naturally to lead the jury to understand that they were the judges of what constituted probable cause, and their findings show that they probably acted upon that understanding. There is some conflict on the subject, but the great preponderance of authority favors the view that the question of what facts are sufficient to constitute probable cause is one of unmixed law. (26 Cyc. 107; 19 A. & E. Encycl. of L. 669.) Courts which acquiesce in the general statement of the rule sometimes refuse an unqualified application of it. For illustration, it was approved in Fagnan v. Knox, 66 N.Y. 525, Erb v. German American Ins. Co., 112 Iowa 357, 83 N.W. 1053, and Hamilton v. Smith, 39 Mich. 222, 227, but denied application in Heyne v. Blair, 62 N.Y. 19, Donnelly v. Burkett, 75 Iowa 613, and Davis v. McMillan, 142 Mich. 391, 105 N.W. 862. This court, however, has consistently adhered to it and given it practical effect. (Drumm v. Cessnum, 58 Kan. 331, 49 P. 78; Railway Co. v. Allen, 70 Kan. 743.) In the Drumm-Cessnum case it was said:

"Where the facts are disputed, it must be left to the jury to determine what the facts are, but the court should instruct what facts amount to probable cause for an arrest and what do not. The court should summarize the claims of the parties, and state to the jury what basis of fact must exist to show probable cause, and what will sustain the claim of a want of probable cause." (Page 333.)

In the present case the court gave this instruction:

"You are instructed that to constitute probable cause for criminal prosecution there must be such reasonable grounds of suspicion, supported by circumstances sufficiently strong in themselves, 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 causing his or her arrest. The facts must be such as would justify an ordinary, 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."

This definition of what constitutes probable cause is doubtless sufficiently accurate, although the use of "cautious" in place of "prudent" has been criticised. (McClafferty v. Philp, Appellant, 151 Pa. 86, 24 A. 1042.) 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.

"Inasmuch as the question of probable cause is always to be determined by the court from the facts in each particular case, it would seem unnecessary to give to the jury any definition of the term, or any instruction upon abstract propositions relating to this 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 effect of the evidence in support of the probative facts which the court may direct them to find in order to determine in which way their general verdict shall be rendered." ( Ball v. Rawles, 93 Cal. 222, 233, 28 P. 937.)

Nevertheless such an instruction is ordinarily not prejudicial, where the charge includes a statement of what facts would amount to probable cause in the case on trial. (Jonasen v. Kennedy, 39 Neb. 313, 319, 320, 58 N.W. 122.) The difficulty here is that the last sentence of the instruction quoted, although open to a different construction, naturally tended to lead the jury to understand that they were to decide for themselves whether the facts known to the defendant when he caused the plaintiff's arrest were such as would justify an ordinarily prudent person in believing her guilty. This misleading tendency, if not corrected by a clear and accurate statement of what concrete facts would justify a reasonable belief of guilt, is a ground for reversal, unless it can be said from the record that the jury were not in fact misled. The inference from the findings, however, is to the contrary. Two of the special questions and answers read as follow:

"Ques. At the time defendant filed complaint did he believe that plaintiff's and her husband's house was a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage? Ans. Yes; to some extent.

"Q. At the time the defendant filed complaint, had he been informed and did he honestly believe that the house of the plaintiff and her husband was a place where persons were permitted to resort for the purpose of drinking intoxicating liquors? A. No. He had some information but not enough to base an honest belief on."

These findings are either in conflict or they mean that Matson did believe Mrs. Michael guilty but had formed that opinion upon insufficient information. The natural conclusion is that the jury were guided by their own judgment as to what information would be enough to serve as the basis for such an opinion. It is true the court elsewhere enumerated the grounds relied upon by the defendant as justifying the arrest, and instructed the jury that, if the facts were as he claimed, they constituted probable cause and he was entitled to a verdict; but the qualifying words were added: "unless you should further find that the defendant, himself, after consulting with an attorney, believed there was no probable cause for the prosecution." The addition limited the effect of the rest of this instruction and thus prevented a correction of the misleading tendency of the other. It necessarily introduced a new, irrelevant and confusing element into the problem--the defendant's understanding as to what constitutes probable cause in law. Belief that probable cause exists for the arrest of a person is obviously a different thing from a belief that he is guilty. The latter is often said to be an essential ingredient of probable cause, although many of the definitions omit it. (26 Cyc. 29; 19 A. & E. Encycl. of L. 663; 6 Words & Ph. Jud. Def. p. 5620 et seq.; note, 26 Am. St. Rep. 140.) The former has no materiality in this kind of an action unless as bearing upon the question of malice. A man may cause an arrest under a reasonable belief, founded on abundant evidence, that the accused person is guilty. Yet he may suppose, through ignorance of the law, that "probable cause" does not exist, and that if he fails to procure a conviction he is answerable in damages. Plainly he would not be liable under such circumstances. Probable cause would...