Alexander v. Cressaty

It seems to me, upon reason, that when a person makes a full, true and correct statement of the facts of a transaction to the city and county attorney and leaves it to that official to say whether upon those facts the offense of forgery has been committed by another and to decide whether the matter should be presented to the grand jury for investigation and for indictment and when the complainant does not appear before the grand jury and appears, in response to a subpoena, before the trial jury and there testifies solely to the truth, the complainant cannot properly be held liable in damages in an action for malicious institution or prosecution of the criminal proceedings, even though the accused is acquitted and even though it appear that the county attorney, in presenting the matter to the grand jury, proceeded upon an erroneous theory of the law. While there is some conflict in the authorities on this point, well reasoned cases support this view. "It is well settled that, if the complaint places all the facts fully and fairly before the proper official, he is not liable in damages, if such official, acting exclusively upon his own judgment, institutes a criminal prosecution not justified by such facts." Cox v. Lauritsen, 126 Minn. 128, 131, 132.

"The principles governing the rights and liabilities of the parties to an action for malicious prosecution are the result of a compromise between the right of the individual to be free from arrest or prosecution upon a charge of which he is innocent and the right of the community to be protected from crime. And one of these principles is that if a person discloses fairly and truthfully to the officer, whose duty it is to detect crime, all matters within his knowledge which, as a man of ordinary intelligence, he is bound to suppose would have a material bearing upon the question of the innocence or guilt of the person suspected, and leaves it to the officer to act entirely upon his own judgment and responsibility as a public officer, as to whether or not there shall be a criminal prosecution, and does no more, he cannot be held answerable in an action for malicious prosecution, even if the officer comes to the wrong conclusion and prosecutes when he ought not to do so. Such a person does no more than his duty; and to hold him answerable in an action for malicious prosecution for the result of the mistake or misconduct of the officer would be to make the division line of compromise between the right of the individual to his liberty and the right of the public to protection trench too far upon the domain of the latter." Burnham v. Collateral Loan Co., 179 Mass. 268, 274.

"Generally it may be said that a prosecuting officer is charged with the duty of determining when to commence a particular prosecution, and when to discontinue it. He stands upon a different footing from a defendant, who goes to a justice of the peace, swears out a warrant, and directs the prosecuting officer to see to its execution. The county attorney in this state, not only directs under what conditions a criminal action shall be commenced, but from the time it begins until it ends his supervision and control is complete, limited only by such restrictions as the law imposes. As is said by the superior court of Pennsylvania, inLaughlin v. Clawson, 27 Pa. 330: ``If the officers of the state * * * consider that a given state of facts is sufficient evidence of probable cause, how can a private citizen be said to be in fault in acting upon such facts, and how can the state condemn him to damages for so doing? * * * If such officers make a mistake, it is an error of government itself, and the government cannot allow the citizen to suffer for his trust in its proper functionaries.' If, therefore, a prosecuting officer incorrectly determines that certain facts given to him constitute a crime, and proceeds to set on foot the necessary action, the informant is not liable, because the fault is not his, but is that of the officer." Halladay v. Bank, 66 Mont. 111, 118. See also 38 C.J. 394-397.

Both the grand jury and the city and county attorney are parts of the law enforcement machinery of this jurisdiction in cases of forgery as well as other cases. The city and county attorney is presumed to know the law and it is his legal duty to decide for himself whether upon the facts called to his attention a crime has been committed and whether a grand jury would be justified in indicting. The grand jury in its turn acts upon evidence submitted to it. It is not required or authorized to find an indictment merely because an individual makes a complaint. If the city and county attorney erroneously advises the grand jury that upon the facts truthfully submitted to him by the complainant a crime has been committed, that is the error of the prosecuting official, for which the complainant ought not to be held liable.

In the case at bar it is clear that prior to the presentation of the motion for a nonsuit no evidence whatever had been adduced tending to show that the defendant had instigated the institution of the criminal proceedings. In asking for leave to reopen the case so as to cure that defect, the attorney for the plaintiff made it clear, in answer to the questions of the judge presiding at the trial, that the defendant did not testify or appear before the grand jury or make any statement whatever to the prosecuting attorney and that the defendant's attorney presented to the prosecuting attorney the check and a transcript of proceedings had in the district court. There was no offer to prove what the defendant's attorney said to the county attorney and it cannot be presumed that he made any false or misleading statement. There was no offer to prove that the defendant's attorney expressed any opinion concerning the law of the subject to the prosecuting attorney or that the prosecuting attorney in presenting the matter to the grand jury did not act solely upon his view of the law applicable to the facts which had been stated to him by the defendant's attorney. It is true that the plaintiff's attorney offered to prove an admission by the defendant to a third person that "she instituted or was responsible for the institution of the criminal prosecution" and that she was "prosecuting" the plaintiff. This, however, was an offer to prove a mere conclusion. Whether the defendant instituted the criminal proceeding, in such a way as to create a liability to the plaintiff for damages, was purely a question of law to be determined upon facts. What those facts were there was no offer to prove, except as already stated. The burden was upon the plaintiff to prove each and all of the essential elements of an action for malicious prosecution. One of those elements was that the defendant instigated the criminal proceedings under circumstances creating a liability in her for damages. That burden, in my opinion, was not successfully maintained, even assuming that the proof offered by the plaintiff was before the court.

Under this view it is unnecessary to consider whether there was evidence of want of probable cause for accusing the plaintiff of the crime of forgery and whether the motion to reopen the case should have been denied for the reason that it was unsupported by affidavits.

In my opinion the motion for a nonsuit was correctly granted and the exceptions should be overruled.