Smith v. Austin

• Citation: 13 N.W. 593,49 Mich. 286
• Court: Michigan Supreme Court
• Decision Date: 18 October 1882
• Parties: SMITH v. AUSTIN.

13 N.W. 593

49 Mich. 286

SMITH v. AUSTIN.

Supreme Court of Michigan

October 18, 1882

An action for malicious prosecution cannot be maintained against the complainant in a criminal proceeding for which there was probable cause, no matter how evil or malicious his motives may have been in making complaint. Nor can it be maintained if complainant, after fully and fairly disclosing to the prosecuting officer everything within his knowledge which would tend to cause or to exclude belief in plaintiff's criminality, left him to determine on his sole responsibility whether the proceeding should be instituted, even though the case were not a proper one for prosecution.

Error to Kent.

E.A. Maher and Frank F. Kutts, for plaintiff.

Taggart & Wolcott, for defendant and appellant.

GRAVES, C.J.

The plaintiff made oath on a trial before a referee and also on a motion for a new trial in the same case and the question occurred whether she had not therein committed perjury. The defendant having some connection with the subject of the litigation and also cognizance of facts bearing on the question proceeded to consult the assistant prosecuting attorney in relation thereto and in contemplation of the institution of criminal proceedings in case that an occasion therefor was considered as existing. That officer received the information given by the defendant and made likewise such further investigation as he thought needful, and he finally concluded that a proper case existed for a prosecution. Acting on this opinion he directed a complaint in defendant's name to be prepared and exhibited to a magistrate, and that officer at once issued a warrant upon which the plaintiff was apprehended and after examination was held for trial. But after the lapse of several months the trial court allowed the prosecuting officer to discontinue and thereupon the plaintiff brought this suit alleging that the criminal proceeding was a malicious prosecution by the defendant. The plaintiff recovered a judgment of $500 and the defendant brought error.

The record contains many objections but they are chiefly devoid of influence. The leading point arises on the directions in regard to probable cause. The opening part of the charge was clear and accurate on the subject and it well discriminated the element of probable cause from that of malice and distinctly indicated how there might be probable cause and which would be fatal to a right of...