#### Brinsley, Appellant, vs. Schulz and another, Respondents.

*February 22*

March *14 1905.*

*Malicious prosecution: Advice of counsel: Evidence.*

jl. If a.criminal prosecution was commenced in good faith under the advice of counsel, particularly of the proper prosecuting officer, after a full and fair statement to him of all the facts known to the complainant or believed by him to exist, such complainant is not liable for malicious prosecution.

2. In an action for malicious prosecution it was competent for defendants to testify generally that they fully and fairly stated all the facts to the district attorney and acted upon his advice; and where this testimony was undisputed it was proper to direct a verdict in their favor.

Appeal from a judgment of the circuit court for Kenosha county: OeeeN T. Williams, Judge.

*Affirmed.*

Action to recover damages for malicious prosecution. The complaint was to the effect that defendants, November 15, 1898, for the purpose of injuring plaintiff, maliciously and without probable cause procured his arrest upon the charge of having embezzled $285, possessed by him as agent of the Pike Woods Camp, No. 391, an association of the Modem Woodmen of America; that such proceedings were duly taken *427pursuant to sucb arrest that plaintiff was imprisoned in the-county jail of Kenosha county for a considerable length of time, awaiting a hearing before the justice of the peace who-issued the warrant; that he was given a hearing December 13, 1898, when the action was dismissed on motion of the district attorney; that he suffered damages by reason of the facts in the sum of $5,000. Judgment therefor with costs was demanded.

Defendants answered to this effect: On November 9, 1898, plaintiff was, and for a long time prior thereto had been, in the employ of the organization mentioned in the complaint. Between May 25, 1896, and the aforementioned date as sucb employee he had in his possession of the moneys of such association $363.80, and being so possessed he converted said money to his own use. Upon due demand being made upon him to restore the same to such association he refused to do so. Defendants as members of such association, Novembei” 15, 1898, were empowered to take such proceedings as might be deemed necessary to recover the money so misappropriated. Thereafter they with plaintiff called upon the duly authorized attorney of such association, who was duly authorized to-practice the profession of law, and discussed the matter, a,t which time plaintiff admitted the facts alleged, but neglected to produce the money or to pay the same to the association. The defendants made a full statement.and explanation of all the facts to said attorney and were by him advised that plaintiff was guilty of the crime of embezzlement and that they should place the matter before the district attorney of the-county. Thereupon they visited such attorney and fairly and fully stated all the facts to him. He then advised them to-make the complaint upon which plaintiff was arrested, and visited a justice of the peace, before whom the warrant was-sworn out, and himself drafted the complaint therefor. Thereafter plaintiff made restoration of the $363.80, and at his request, and by consent of the district attorney, the crim*428inal proceedings against him were dismissed. Defendants acted in good faith in all proceedings referred to and were .guided by the district attorney upon a full statement of the facts to him.

On the trial evidence was produced on behalf of the defendants, claimed to conclusively establish the allegations of the answer as to their having fully and fairly stated all the facts to the district attorney and his having advised them to ■swear out the complaint for plaintiffs arrest. At the close ■of the evidence on both sides a verdict of no cause of action was directed. Judgment was rendered in favor of the defendants for costs upon such verdict, from which this appeal was taken.

*Wallace Ingalls,*for the appellant.

Eor the respondents there was a brief by *James Cavanagh*■and *Jacob C. Kronche,*and oral argument by *Mr. Cavanagh*■and *Chester D. Barnes.*

Maeshall, J.

In this class of cases one of the elements necessary to plaintiffs right to recovery is want of probable •cause for the commencement of the alleged malicious prosecution. If the evidence, in the most favorable view thereof in plaintiffs favor which it will reasonably bear, fails to establish that sufficiently to warrant a reasonable belief in its existence, it is the duty of the court, upon a motion being made therefor, to direct a verdict in defendant’s favor. One ■of the most efficient ways of negativing a *-prima facie*showing in that regard and' establishing affirmatively probable •cause is to prove that the prosecution was commenced under the advice of counsel, particularly of the projDer prosecuting officer, after a full statement to him of all the facts known to the defendant. It makes no difference in such a case whether the facts supposed to exist do so or not; if there is an honest belief in such existence and the supposed facts are fully and fairly stated to counsel to obtain proper guidance in the mat*429ter, and -upon his advice as to the sufficiency of the same the-prosecution, is in good faith commenced, that is enough. Such circumstances when fully established show, as a-matter of' law, absence of malice and presence of probable cause, precluding any liability for malicious prosecution. *Messman v. Ihlenfeldt,*89 Wis. 585, 62 N. W. 522; *Small v. McGovern,*117 Wis. 608, 94 N. W. 651.

If such were not the law, there would be so much risk in instituting criminal prosecutions that crime to a great extent would probably go unpunished. Few men would malie complaint against a wrongdoer and take the chances of being-mulcted in damages for malicious prosecution if it should finally turn out" by the verdict of the jury, or otherwise, that the accused could not he convicted. It is essential to good government- that one who has probable cause to believe another has committed a criminal offense may, as regards liability to that other, put the proper instrumentalities in motion for such other’s punishment if he is in fact guilty. It is just as essential to good government that the judgment of men sufficiently learned in the law to be entitled to practice-the profession thereof, deliberately given upon the facts as-to any situation, that they involve criminal responsibility,, should be deemed probable cause for commencing the proper-action to enforce such responsibility.

Applying the foregoing to the record in this case, it seems the learned trial court was justified in directing the verdict in respondents’ favor. As we understand the evidence, it is. undisputed that they made a full statement of all the facts-within their knowledge to the attorney for the institution whose money it was supposed had been misappropriated by appellant ; that such attorney pronounced his conduct embezzlement, and advised respondents to lay the whole matter before the prosecuting officer of the county for such action as he-might think best; that following that suggestion they made a full statement of all the facts within their knowledge to such *430officer, and were advised by bim tbat appellant was a proper subject for prosecution for embezzlement; and tbat sucb officer visited a justice of tbe peace witb tbem and there drew; or dictated to another who drew, tbe complaint whereby tbe prosecution was instituted. Counsel for appellant insist tbat tbe proof failed to show conclusively tbat all facts material to tbe matter known to respondents were stated to tbe district attorney. Tbat seems to be based on tbe theory tbat there were sucb facts, which neither respondents nor counsel testified, specifically, were brought to tbe latter’s attention. Tbe record shows tbat *Newberry*testified in general terms tbat when be made Hie complaint be believed tbat *Brinsley*bad embezzled tbe money; tbat be fully and fairly stated all tbe facts to tbe district attorney and followed bis advice in tbe matter. Respondent *Schulz*testified, substantially, thus: We went to tbe district attorney’s office and stated tbe case fully to bim and upon bis recommendation and advice obtained tbe warrant for tbe arrest. I stated fully all the facts within my knowledge at tbat time. Upon tbat statement tbe district attorney advised tbe making of the complaint. It was perfectly competent to testify in tbat general way. If there were any facts within respondents’ knowledge material to tbe matter, which they did not state to tbe district attorney, appellant’s counsel should have shown tbat by cross-examination or in some other proper way. As tbe evidence stood when tbe motion to direct tbe verdict was made, there was tbe undisputed testimony of both defendants, as indicated. Under those circumstances it would have been plain error for tbe court to deny the motion for a verdict in respondents’ favor.

*By the Court.*— Tbe judgment is affirmed.