Hardin v. Hight , 106 Ark. 190 ( 1913 )

Kirby, J.,

(after stating the facts). It is insisted that the court erred in refusing appellant’s request for a directed verdict.

In Price Mercantile Co. v. Cuilla, 100 Ark. 318, this court said: “The law is well settled that where one lays all the facts in his possession before the public prosecutor, or other counsel learned in the law, and acts upon the advice of such counsel in instituting a prosecution this is conclusive of the existence of probable cause and is a complete defense in an action for malicious prosecution. Kansas & Texas Coal Co. v. Galloway, 71 Ark. 351.”

It is not undisputed that appellant related all the material facts in the case known to her to the attorneys whom she consulted relative to the procuring of the search warrant and acted upon their advice in doing so. Only one of the attorneys testified and he denied that she told him of her acquaintance with appellee and of the invitation extended to her to go into the room and help herself to all the apples she desired, nor of the length of time she stayed and her remark to Mrs. Stein upon her leaving, about her having stayed so long. Mrs. Stein denied also that appellant had said anything to her upon the porch of her home about the length of time appellee stayed in the house or of seeing her depart therefrom after supper.

The court correctly declared the law in the instructions given to the jury and they doubtless believed that appellee had not made a full disclosure of the material facts to the lawyers whom she consulted before having the search warrant issued, or that she had made some false statements as to what the facts relative thereto were in her consultation with them. The question was fairly submitted to the jury upon proper instructions and their decision is conclusive upon the point that there was lack of probable cause for tbe institution of the proceeding.

A search warrant is one of the agencies provided by law for the detection and punishment of crime and the recovery of property stolen. Our Constitution guarantees the right to the people of the State to be secure in their persons, houses, papers and effects against unreasonable search, * * * and “no warrant shall issue, except upon probable cause, supported by oath or affirmation,” etc. Art. 2, § 15. In other jurisdictions it has been held that procuring the issuance of a search warrant against a person maliciously and without probable cause will support an action for damages.for malicious prosecution, even though the warrant does not direct the arrest of the person in case the stolen goods be found in his possession. Anderson v. Cowles, 72 Conn. 335, 77 Am. St. Rep. 310; Cary v. Sheets, 67 Ind. 375; Sprangler v. Booze, 103 Va. 276; 49 S. E. 42; Elsee v. Smith, 2 Chitty, 304, 18 E. C. L. 648, 1 D. & E. 97; Miller v. Brown, 3 Mo. 96.

Certainly the putting in motion of such an agency maliciously and without probable cause is as much calculated to injure the feelings and reputation of the person against whom it is directed as if the further direction for his arrest in case the property sought should be found in his possession were contained therein. This being true, we hold the procuring the issuance of a search warrant maliciously and without probable cause, will support an action for damages for malicious prosecution.

Finding no error in the record, the judgment is affirmed.