Albrecht v. Ward , 91 Ill. App. 38 ( 1900 )

Mr. Justice Worthington

delivered the opinion of the court.

As this case must be reversed, we will not discuss evidence for or against probable cause for the prosecution of appellee. He was in the employ of appellants, who were engaged in the wholesale and retail liquor business, and as such, received money at the bar and collected bills. During such employment, it was claimed that he embezzled certain moneys of appellant, for Avhich he was prosecuted. The evidence as to probable cause is conflicting, and if the decision of the case turned alone upon this issue, the- verdict of the jury Avould be accepted as conclusive. Upon the part of appellants it is claimed, that prior to the arrest of appellee, a full and fair statement of the material facts in the case Avas made to John G. Harder, an attorney, and an assistant to the state’s attorney of the county, and that he advised that a Avarrant should be sworn out, which Avas done. Hpon the hearing before the justice, appellee Avas discharged. That subsequently, appellants made a full and fair statement of all the material facts Avithin their knoivledge, or that could be reasonably ascertained, to Martin D. Baker, state’s attorney of the county, including the fact of the discharge of appellee before the justice, and that he upon such statement advised that appellee was guilty of embezzlement, and that it was their duty to present the case to the grand j ury, which was done, and an indictment returned.

The evidence tends to support this defense. Appellants applied to officers whose duty under the laiv was to prosecute persons who had violated the law. If their statement of the material facts were fair and full, and they acted in good faith, upon the advice of the state’s attorney, they are not guilty of malicious prosecution. Calef v. Thomas, 81 Ill. 478; Neufield v. Rodeminski, 144 Ill. 83.

This was an affirmative defense, and required to be sustained by a preponderance of the evidence only. The ninth instruction given for appellee required a higher degree of evidence. It is as follows:

“ That in order to render the advice of counsel any protection in this suit to the defendants, the jury must be satisfied from the evidence, that such advice was sought in good faith, and that a fair, full and true statement of all the facts was submitted to the counsel, and that they, in instituting the prosecution, were induced to act, and acted on such advice, without previous determination to prosecute the plaintiff whether so advised or not.”

The law does not require that the jury should be satisfied from the evidence. If they believed from a preponderance of the evidence it was sufficient. Rolfe v. Rich, 149 Ill. 436; Ruff v. Jarrett, 94 Ill. 475.

The evidence in this case is conflicting, and an erroneous instruction as to the weight of evidence necessary to establish a contested issue is therefore fatal.

Judgment reversed and case remanded.