Sutton v. McConnell

• Decision Date: 31 January 1879
• Citation: 46 Wis. 269,50 N.W. 414
• Parties: SUTTON v. MCCONNELL ET AL.
• Court: Wisconsin Supreme Court

46 Wis. 269

50 N.W. 414

SUTTON

v.MCCONNELL ET AL.¹

Supreme Court of Wisconsin.

Jan. Term, 1879.

Appeal from circuit court, Columbia county.

Action for malicious prosecution. The evidence showed that plaintiff used insulting language towards defendant Hanneman, whereupon the latter complained to the police justice, stating to him the facts as they occurred, and asking whether there was not an ordinance which covered the offense. The police justice drew up a complaint, and defendant signed it, accusing plaintiff of an offense which the facts did not constitute. After a trial the justice acquitted plaintiff, who thereupon brought this action for malicious prosecution. It appeared that the acts committed by plaintiff, while they did not constitute a violation of the ordinance for which plaintiff was tried, were a violation of other ordinances, but no complaint was made for the latter violations. Judgment for defendants. Plaintiff appeals. Reversed.A. Scott Sloan, for appellant.

G. W. Hazelton, ( L. S. Dixon, of counsel,) for respondents.

LYON, J.

I. A discussion of all the alleged errors assigned will not be attempted, for the reason that we find material error in the charge of the learned circuit judge to the jury, which must necessarily work a reversal of the judgment. It was not claimed by any one on the argument of this apeal that the language addressed by the plaintiff to the defendant Hanneman was a violation of the ordinance under which the plaintiff was prosecuted. It was virtually conceded by the learned counsel for the defendants that it was not, and the jury were so instructed. The ordinance was intended to prevent lewd and lascivious language and conduct, and the words “wanton or obscene” are used therein in that sense. It does not extend to opprobrious and insulting language, which, although tending to a breach of the peace, is not lewd or lascivious. The jury were instructed that, although the prosecutor and the magistrate were mistaken in thinking the plaintiff had violated that particular ordinance, still, if he had actually violated any kindred ordinance of the city, the defendants may show, in defense of this action, the real substantial cause the prosecutor had in mind, to defeat the claim that the prosecution was without probable cause. And, further, that the defendants, having knowledge of all the facts, are not responsible for the mistake of the magistrate. The infirmity in the instructions is that they ignored entirely the complaint actually made to the police justice, and held that the existence of probable cause for the prosecution was established by proof of certain acts of the plaintiff on the occasion in question, concerning which no complaint was made. The only proof of the complaint actually made against the plaintiff is contained in the testimony of the defendant Hanneman; and he testified positively that he only stated to the justice the language which the plaintiff had addressed to him. He did not complain that the plaintiff had done any other act which violated any city ordinance. Had the prosecutor complained truly to the justice that the plaintiff had violated any ordinance,--as that he disobeyed, or incited the peddler to disobey, the lawful commands of the marshal, or made a riot or disturbance in the streets, or aided in gathering a crowd which obstructed the streets unlawfully,--we might have a very different question to determine. But no such complaint was made. The complaint was for using opprobrious language to the prosecutor, which the magistrate erroneously believed was wanton or obscene within the meaning of the ordinance, and for that alone. We think no case has been cited which holds that, in an action for malicious prosecution, probable cause therefor is established by proof that, although the act complained of was not an offense, the accused had committed an offense not complained of. The case we have here is this: The prosecutor complained to the police justice that the plaintiff had addressed insulting language to him,--stating the language truly,--and desired to prosecute him if the language was a violation of any city ordinance. It was not in fact a violation of any ordinance, but the justice advised the prosecutor that it was a violation of the ordinance imposing a penalty for the use of wanton or obscene language. The justice drew up the complaint charging the plaintiff, in terms, with having violated that ordinance, and the prosecutor swore to the complaint. The justice thereupon issued his warrant for the apprehension of the plaintiff, who was arrested and brought before him, and was afterwards tried for the offense charged, and acquitted. Prima facie there was an entire want of probable cause for the prosecution; but, to supply that want, the defendants, when sued for malicious prosecution, were permitted to show that, on the occasion of the speaking of the words, the plaintiff violated some ordinances of the city for the violation of which no complaint was made to the magistrate. And the jury were instructed, substantially, that such proof supplied the element of probable cause, and was fatal to the action.

Numerous cases, both English and American, were cited on the argument to support the proposition that if a prosecutor fully and truly states the facts of which he complains to his counsel or to a magistrate, and such counsel or magistrate advises him that the facts show that some particular crime has been committed by any person, he may safely rely on the advice, and prosecute such person for the crime. If it turns out that the counsel or magistrate mistook the law,--if the facts stated do not constitute the crime charged, or any crime,--the prosecutor will be protected in an action brought against him for malicious prose cution. Stated in another form, the proposition is that a full and honest statement of the facts by the prosecutor to his counsel or the magistrate, and the mistake of the counsel or magistrate, as to the legal inference to be drawn from the facts, stand for probable cause, the existence of which is fatal to an action for a malicious prosecution. These cases are cited in the briefs of the learned counsel for the defendants, and it is unnecessary to repeat the citations. To these, however, should be added Bennett v. Black, 1 Stew. (Ala.) 494; Wills v. Noyes, 12 Pick. 324;Dennis v. Ryan, 65 N. Y. 385;Smith v. Zent, 59 Ind. 362; McCarthy v. Kitchen, Id. 500. The rule seems to be settled that, under the circumstances above stated, the advice of counsel learned in the law is a protection to the prosecutor. But whether the same rule applies if the erroneous advice is given by a person not learned in the law, is a...