Dunnington v. Loeser

1915 OK 407, 150 P. 874, 149 P. 1161, 48 Okla. 636, 1915 Okla. LEXIS 679

• Court: Supreme Court of Oklahoma
• Decided: June 1, 1915
• Docket: 4290
• Status: Published

Opinions

Opinion by

DEVEREUX, C.

(after stating the facts as above). The question presented by the exceptions to the charge of the court above set out raises the question as to whether or not probable cause is a question for the jury or a question of law.

Michael v. Matson, 81 Kan. 360, 105 Pac. 537, is a strong authority in the case at bar. The instruction objected to in that ease was as follows:

“You are instructed that, to constitute probable cause for criminal prosecution,, there must be such reasonable grounds of suspicion, , supported by circumstances suf ficiently strong * * * to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged, and, in this connection, you are further instructed that a mere belief that an innocent person is guilty of a crime is not alone sufficient to justify * * * his- or her arrest. The facts must be such as would justify an ordinarily intelligent and reasonably prudent person in entertaining such belief. Whether in this case such facts had come to the knowledge of the defendant at the time he entered the complaint against the plaintiff is a question of fact for the jury to determine from a preponderance of the evidence.”

In reversing the case on account of this instruction the court say:

“As it is not the province of the jury to determine what circumstances would induce a reasonably prudent man to believe another guilty of a crime, there seems to be no purpose in the giving of an abstract instruction on the subject. * * * These abstract rules will guide the court in determining the question, but are apt to lead the jury away from their function of passing upon the evidence in support of the probative facts which the court may direct them to find in order to determine in which way their general verdict shall be rendered.”

In Vickers v. Logan, 44 N. C. 393, it is held:

“Whether certain supposed facts constitute probable cause for a prosecution is a question of law, to be decided by the court, and not by the jury. It is the duty of the judge, leaving to the jury to ascertain the existence of the facts, to declare what inference as to probable cause results therefrom ,* to leave the inference to the discretion of the jury is error.”.

In Stone v. Crocker, 41 Mass. (24 Pick.) 81, it is held:

“In an action for malicious prosecution, what facts and circumstances amount to probable cause is a question of law; whether they exist in the particular case is a question of fact.”

In Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116, it is held:

“The question as to what amounts to probable cause is one of law in a very important sense. It is therefore generally the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it proves, with instructions that the facts found amount to proof of probable cause, or that they do not.”

In Lacey v. Porter, 103 Cal. 597, 37 Pac. 635, it is held:

“Actions for malicious prosecution are not favored in law, and will be sustained only when it is-shown that the prosecution was, in fact, actuated by malice, and that, the -party instigating it had no reasonable ground for causing the prosecution. Malice is a question of fact; but what facts and circumstances amount to probable cause is a pure question of law, though whether such facts and circumstances exist is a question of fact.”

These authorities are directly in point that the instructions to the jury above set out, and which were duly excepted to, were erroneous.

We therefore recommend that the judgment be -reversed, and this cause remanded for a new trial.