Kittler v. Kelsch

216 N.W. 898, 56 N.D. 227, 56 A.L.R. 1217, 1927 N.D. LEXIS 94

• Court: North Dakota Supreme Court
• Decided: November 25, 1927
• Status: Published

Opinions

Burke, J.

On the 25th day of November, 1925, 0: E. Kelch, state’s attorney of Morton county, received an anonymous letter charging the plaintiff, Mrs. Anna Kittler, with a felony, and stating, “if you don’t see to it and get her out of town, there is a Women’s Cluh in town that will either lynch or tar and feather her.” A short time thereafter, said state’s attorney received a letter purporting to come from the plaintiff, Mrs. Anna Kittler, which refers to the subject matter of the former letter, and admits the truth of the statements therein, charging the plaintiff with the commission of a criminal offense, and signed “Mrs. Anna Kittler.” On receipt of the last letter, the state’s attorney made a complaint before a justice of the peace, a warrant was issued, thereon, and the plaintiff was arrested. After an investigation it appearing that the signature on the second letter was a forgery, the action against the plaintiff was dismissed. Thereafter the plaintiff sued the said state’s attorney, O. IT. Kelch, the defendant in this action, for damages, alleging all the facts as stated herein, and further that the said defendant, “did falsely, fraudulently, maliciously, oppressively, willfully, knowingly, and negligently, and without probable cause make a criminal complaint against the plaintiff in writing, and affixed his name thereto.”

A copy of the criminal complaint, the warrant and the sheriff’s return on the warrant are made a part of the complaint in this action, all of which are regular in form and are sufficient in substance. The complaint also includes a statement made by the state’s attorney after an investigation and which was manifestly intended to exonerate the plaintiff from the charge made against her in the criminal complaint. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action was sustained and the plaintiff appeals.

In oral argument in this court, the plaintiff’s attorney insisted that this action is for false arrest, or false imprisonment and in his brief after quoting from the case of Watts v. Gerking, 111 Or. 641, 34 A.L.R. 1489, 222 Pac. 318, 228 Pac. 135, he states, “There can be no quarrel with that ruling, but the case at bar is not one of malicious prosecution, it is one of false arrest.” The allegations of the complaint and the copy of the criminal complaint made by the state’s attorney, and the warrant issued thereon show conclusively the action is not for false imprisonment but for malicious prosecution. In the case of Johnson v. Girdwood, 7 Misc. 652, 28 N. Y. Supp. 152, the court said:

“If the plaintiff’s characterization of his action in the brief as Tor false arrest and imprisonment’ be correct, the complaint cannot stand a moment, for it appears that the prosecution and conviction of the plaintiff were upon legal process; but ‘an action for false imprisonment is for the defendant’s having done that which, upon the stating of it, is manifestly illegal, while a malicious prosecution is for a prosecution which, upon the stating of it, is manifestly legal.’ Lord Mansfield in Johnstone v. Sutton, 1 T. R. 544, 99 Eng. Reprint, 1243, 1 Eng. Rul. Cas. 766. Under our system of procedure a plaintiff’s right of recovery depends, not upon the name he gives his action, or the classification to which he subjects it, but upon whether, on the facts exhibited, he is entitled to any legal redress.”

Jaggard on Torts, page 424, states the law as follows: “A sufficient judicial warrant takes away from an imprisonment the essential element of illegality, and completely justifies an arrest. If the warrant be wrongfully obtained, altho upon sufficient legal proceedings, the civil action would be malicious prosecution. Marks v. Townsend, 97 N. Y. 590; Jefferies v. McNamara, 49 Ind. 142—145; Joiner v. Ocean S. S. Co. 86 Ga. 238, 12 S. E. 361; Knight v. International & G. N. R. Co. 9 C. C. A. 376, 23 U. S. App. 356, 61 Fed. 87; Finley v. St. Louis Refrigerator & W. Gutter Co. 99 Mo. 559, 13 S. W. 87; Lieb v. Shelby Iron Co. 97 Ala. 626, 12 So. 67; Pratt v. Brown, 80 Tex. 608, 16 S. W. 443; Kent v. Miles, 65 Vt. 582, 27 Atl. 194; Hobbs v. Ray, 18 R. I. 84, 25 Atl. 694; Murphy v. Martin, 58 Wis. 278, 16 N. W. 603.” “Imprisonment caused by a malicious prosecution is not false unless without legal process or extra-judicial. Nebenzahl v. Townsend, 61 How. Pr. 356; Murphy v. Martin, 58 Wis. 276, 16 N. W. 603; Colter v. Lower, 35 Ind. 285, 9 Am. Rep. 735, 7 Am. & Eng. Enc. Law 663, 664, and cases cited; Turpin v. Remy, 3 Blackf. 210; Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253, and cases cited; 1 Chitty Pl. § 133.” [Jaggard, Torts, p. 630, note]; Whitten v. Bennett, 30 C. C. A. 140, 57 U. S. App. 145, 86 Fed. 405.

The defendant, Kelch, proceeded under the statute, made the necessary and sufficient complaint, -and the defendant was arrested on a sufficient warrant, and it follows that there was no false imprisoniftent. The remaining question is whether the plaintiff’s complaint is sufficient as a case of malicious prosecution.

It is the contention of the plaintiff that the defendant, in making the complaint upon which the warrant was issued, acted in a ministerial capacity and that he is responsible the same as any person who was not-an officer.

The general duties of the state’s attorney are prescribed in § 3376 Comp. Laws 1913, Subdivision 2 of said section provides: “That he (the state’s attorney) must institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses, when he has information that such offenses have been committed.”

This section charges the state’s attorney with the duty of instituting criminal proceedings for the arrest of any person charged with or reasonably suspected of committing a public offense. ILe has no choice in the matter, the law makes it his duty, and states specifically that he must, and if he fails in his duty he may be removed from office.

Section 10,535 provides, that when the magistrate before whom the complaint is made is a justice of the peace, before issuing the warrant-, the complaint, if made by any person other than the state’s attorney of the county, and other evidence taken by such magistrate .relating to the offense charged, must be submitted to such state’s attorney, and he must examine into the charge, and enter either his approval or disapproval of the issuance of a warrant upon such complaint. If he disapproves no warrant shall be issued, but if he approves the warrant must issue. This section clothes the state’s attorney with the judicial authority to decide when the evidence is sufficient and when a person is reasonably suspected of the commission of a public offense. It also contemplates the making of a criminal complaint by the state’s attorney and makes a clear distinction between such a complaint- and a complaint made by any other person in this to wit, if the complaint is made by any person other than the state’s attorney of the county, it must be submitted to such state’s attorney and warrant cannot issue without his approval, but if the complaint is made by the state’s attorney who is charged with the duty of instituting criminal proceedings for the arrest of persons charged with, or reasonably 'suspected of the commission of a public offence, the warrant must issue, for the law has given to the state’s attorney, the power to say when a warrant shall issue and when it shall not, and when he decides that the evidence is sufficient it is his duty to institute proceedings as provided in § 3376, Oomp. Laws 1913, and make the complaint contemplated in § 10,535.

Under § 685, Comp. Laws 1913, the state’s attorney is subject to removal by the governor for misconduct, or malfeasance in office, and subject to removal in a judicial proceeding for misconduct or malfeasance in office under § 10,481.

Under § 9830, he is guilty of a misdemeanor if he willfully fails or refuses to perform the duties of his office according to law, and he is guilty of a misdemeanor when he acts contrary to official duty under § 10,891.

The state’s attorney is the legal adviser of the county commissioners. He must when required and without fee give his opinion in writing to the -county, district, township, and school district officers on matters relating to the duties of their respective offices. He must advise irrigation engineers, and drain commissioners. He is the legal adviser of the grand jury, when there is a grand jury, and of every county officer in the county.

Under chapter 71, Session Laws 1890, prosecutions are by information filed by the state’s attorney instead of by indictments filed by the grand jury. When a grand jury is called under § 10,635 “'the grand jury has the power, and it is their duty to inquire into all public offenses committed or triable in the county or subdivision, and to present them to the court, either by presentment or indictment, or accusation in writing.” § 10,656. When a grand jury is not called the same power is given to the state’s attorney under § 10,629 which reads as fellows:

“The state’s attorney of the county or judicial subdivision in which any person charged with the commission of a crime or public offense has been held to answer, or other person appointed by the court as provided by law to prosecute, must make full examination and inquiry into the facts and circumstances touching any crime or public offense committed by the accused and triable in said county or judicial subdivision, and must file an information setting forth the crime committed according to the facts ascertained on such examination and inquiry and from the written testimony taken before the magistrate, whether it is the offense charged in the complaint upon which the examination was had or some other offense.”

In the absence of a grand jury the state’s attorney is given the same authority and charged with the same responsibility, except that the language in § 10,629 is more mandatory than § 10,656. The law is well settled that the state’s attorney is a quasi judicial officer. The plaintiff admits that he is a quasi judicial officer but claims that he was not acting in a judicial capacity in making the complaint in the criminal action against the plaintiff, and that is the only question involved in this case. It is, of course, well settled that judicial officers are not liable in a civil action for any decision within their jurisdiction. Landseidel v. Culeman, 47 N. D. 275, 13 A.L.R. 1339, 181 N. W. 593.

In the case at bar, there is no question about jurisdiction. The court had jurisdiction as a committing magistrate over the offense charged, and over the person of the defendant charged with the commission of the offense in the county of Morton. It was the duty of the state’s attorney to prosecute all criminal offenses committed in said county, he had jurisdiction to hear and to decide that the facts before him were sufficient to institute a criminal prosecution thereon, and authority to have process issued to make his decision effective.

The case of Schneider v. Shepard, 192 Mich. 82, L.R.A.1916F, 399, 158 N. W. 182, relied upon by the plaintiff is a case of false imprisonment. In that case there was no complaint or warrant. The state’s attorney did not even have the name of the person arrested. Tie had only the number of a house and a report made to him by private detectives, in reference to the conduct of that house, and with no further information and without making a complaint or the issuing of a warrant he ordered the inhabitants of said house arrested. The acts of the state’s attorney were entirely outside the authority given him by the statute. Tie did not act under the law, and therefore the arrest and imprisonment was false imprisonment for which the attorney was liable.

A case in the same class, is the case of Shaw v. Moon, 117 Or. 558, 45 A.L.R. 600, 245 Pac. 318. In this case a justice of the peace issued a search warrant without, the affidavit required by statute. The court held, that the issuance by a judicial officer of a search warrant upon a defective or insufficient affidavit does not render him civilly liable, even though he act maliciously and without probable cause, but if he issues a search warrant without an affidavit as required by statute he acts without any jurisdiction, and therefore is liable. The opinion quotes from 25 C. J. 515, as follows: “A judicial officer is not liable for acts done in his judicial capacity where there is not a clear absence of all juris diction over the subject matter and person, even though such acts com stitute an excessive exercise of jurisdiction or involve a decision that the officer had jurisdiction over the particular case where in fact he had none.” The distinction is that if the officer acts entirely without jurisdiction he is liable, but if there is an excess of jurisdiction, or if there is a question of jurisdiction which the officer must decide, then and in such case he is not liable even though he should decide wrongly in holding that he had jurisdiction when in fact he had none. This distinction is pointed out clearly by this court in the case of Landseidel v. Culeman, supra. In this case the jury made special findings in effect that Culeman, Schwenke and Junkers without probable or reasonable cause and maliciously for the purpose of attempting to extort money from- the plaintiff caused the plaintiff to be arrested and confined in jail; that none of the defendants actually and in good faith believed that the plaintiff had committed any crime.

The defendant Culeman was the justice of the peace who, issued the warrant. The complaint was not approved by the state’s attorney as required by § 19,135, but it appeared that the state’s attorney had told the justice of the peace some time previously that he might issue warrants in minor cases where he thought a man should be arrested; that it would be all right with him and he would O. K. it. This court said:

“It is elementary that judicial officers are not liable for the erroneous exercise of the judicial powers vested in them. This immunity from liability is based upon considerations of public policy. To hold judicial officers personally liable for errors of judgment concerning either questions of law or fact would be subversive of both independence and efficiency in the administration of justice. This rule of public policy applies as well to inferior courts of limited jurisdiction as to superior courts of general jurisdiction. ... If a judge acts within his jurisdiction, it has been held that he is not even liable to a party civilly though he act both maliciously and corruptly. Broom v. Douglass, 44 L.R.A.(N.S.) 164, and note (175 Ala. 268, 57 So. 860, Ann. Cas. 1914C, 1115).” See also Bradley v. Fisher, 13 Wall. 335, 20 L. ed. 646.

“Obviously if Culeman was acting judicially and within his jurisdiction, his belief as to whether or not Landseidel had committed some crime was immaterial, as it might have been his duty to issue the war rant nevertheless, or' at least he might well have conceived it to be his duty. And if he regarded it as his duty to issue a warrant, neither the fact that he acted maliciously nor the absence of probable cause for the arrest, would render him personally liable. Broom v. Douglass, supra; 11 R. C. L. 815.” [47 N. D. 282.]

The recent case of Watts v. Gerking, 111 Or. 641, 34 A.L.R. 1490, 222 Pac. 318, 228 Pac. 135, is an action against the state’s attorney of Umatilla county, Oregon, for the wrongful issue of a search warrant. In that case the complaint alleged, that the state’s attorney knew that plaintiff was innocent; that he falsely, and maliciously accused and charged, the plaintiff with the commission of a criminal offense, and caused the plaintiff to be prosecuted upon such false and fictitious charge and that Tie “instigated others to swear falsely against the plaintiff, knowing at the time that the charge itself was a false, ficiitio-us and a trumped-up one(The italics are ours.) The Oregon Court on the first hearing held that the complaint stated a cause of action but on rehearing overruled and set aside former decision reported in 111 Or. 641, 222 Pac. 318, and held, that the prosecuting attorney, is not liable' for the malicious prosecution of a criminal action, when the determination of the question whether or not to prosecute is within his official authority, two of the judges dissenting. The case law on the subject is cited and quoted at length in that case and in notes following, 34 A.L.R. 1504, and there seems to be only one case to the contrary, viz., Leong Yau v. Carden, 23 Haw. 362.

The following cases we think are especially in point as they relate tc officers who are quasi judicial officers, viz.: “Fath v. Koeppel, 72 Wis. 289, 7 Am. St. Rep. 867, 39 N. W. 539, was a case against a fish inspector who was vested with power to determine the quality and wholesomeness of fish offered for sale, and, if unwholesome, to condemn and destroy fish so offered. In that case the supreme court of Wisconsin, in sustaining the demurrer to the complaint in an action.for damages, said: . . . ‘The officer exercising such a power is within the protection of that principle that a judicial officer is not responsible in an action for damages to anyone, for any judgment he may render, however erroneously, negligently, ignorantly, corruptly, or maliciously he may act in rendering it, if he acts within his jurisdiction. This principle is stated and given force in Steele v. Dunham, 26 Wis. 393, by the present chief justice, to shield from liability members 'of an equalizing board, . . . who charged with liability for damages to the plaintiff for corruptly and oppressively increasing the valuation of certain property without proof. . . . This principle protects all officers exercising judicial powers, whatever they may be called. It is a judicial privilege,’ and has ‘a deep root in the common law,’ and is found 'asserted in the earliest judicial records, and it has been steadily, maintained by an undisturbed current of decision.’ Yates v. Lansing, 5 Johns. 291. It is a discretionary authority, where the determination partakes of the character of a judicial decision. Druecker v. Salomon, 21 Wis. 621, 94 Am. Dec. 571, and other authorities.” [111 Or. 662.]

In the ease of Re Bentine, 181 Wis. 587, 196 N. W. 214, the court said: “A public prosecutor is a 'quasi judicial’ officer retained by the public for the prosecution of persons accused of crime, in the exercise of a sound discretion to distinguish between the guilty and the innocent between the certainly and the doubtfully guilty.”

In the recent casoe of Halladay v. State Bank, 66 Mont. 111, 212 Pac. 861, the Montana court said: “Where the prosecuting officer starts a criminal proceeding on full and fair statement of the facts from the accuser, he acts for the state and so he does when proceeding on his own personal knowledge.” Continuing the court said: “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.”

In the case of Laughlin v. Clawson, 27 Pa. 328, the court said: “If the officers of the state, who are appointed on account of their legal learning, consider that a given state of facts is sufficient evidence of probable cause. ... If such officers make a mistake, it is error of government itself, and government cannot allow the citizen to suffer for his trust in its proper functionaries. There are cases' where the- judgment of the lower grades of officers (Reynolds v. Kennedy, 1 Wils. 232, 95 Eng. Reprint, 591; Brooks v. Powers, 15 Mass. 244, 8 Am. Dec. 99; Smith v. Macdonald, 3 Esp. 7, 170 Eng. Reprint, 519; Leigh v. Webb, 3 Esp. 165, 170 Eng. Reprint, 574; Ulmer v. Leland, 1 Me. 138, 10 Am. Dec. 48), and even of those who are not properly officers at all (Walter v. Sample, 25 Pa. 275; Williams v. Vanmeter, 8 Mo. 339, 41 Am. Dec. 644), is sufficient to establish probable cause. If the party prosecuted should suffer from such mistakes, he must bear it as one of those accidents for which in the nature .of things there can be no redress, for the government cannot make the prosecutor suffer for the injuries which it has itself through mistake committed.”

In the case of Downer v. Lent, 6 Cal. 94, 65 Am. Dec. 489, the court said: “It is beyond controversy that the power of the board of pilot commissioners is quasi judicial, and that they are not civilly answerable. They are public officers to whom the law has intrusted certain duties, the performance of which requires the exercise of judgment.”

The case of Turpen v. Booth, 56 Cal. 65, 38 Am. Rep. 48, is a case against members of a grand jury and the court said: “I prefer to place the decision on the broad ground, that no public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, and however malicious the motive which produced it. Such acts, when corrupt, may be punished criminally, but the law will not allow malice and corruption to be charged in a civil suit against such an officer for what he does in the performance of a judicial duty. The rule extends to judges, from the highest to the lowest, to jurors, and to all public officers, whatever name they may bear, in the exercise of judicial power.”

In the case Yaselli v. Goff (C. C. A. 2d) — A.L.R. —, 12 F. (2d) 396, the complaint alleged, that the defendant willfully and maliciously conspired to get himself appointed as a prosecutor, in order that he might willfully and maliciously indict the plaintiff; that he had others, falsely and maliciously and without reasonable and probable cause (lid cause to be introduced and used before the grand jury a great mass of false, misleading and hearsay testimony, and thus unjustly, unfairly, ánd improperly influenced and poisoned the minds of the grand jurors upon which the defendant was indicted, tried, and at the close of the state’s case, the court directed a verdict for the defendant who then brought a civil action for damages. In this action the court reviews the decisions at length. Eirst those relating to judicial officers quoting from Bradley v. Fisher, supra, as follows: “In other words, it (the plea) sets up that the order for the entry of which the suit is brought, was a judicial act, done by the defendant as the presiding justice of a court of general criminal jurisdiction. ' If such were the character of the act, and the jurisdiction of the court, the defendant cannot be subjected to responsibility for it in a civil action, however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff. For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English Judge, it would establish the weakness of judicial authority in a degrading responsibility.”

From 2 Cooley on Torts, 3d ed. p. 195: “In effect, the state says to the .officer that these duties are confided to his judgment; that he is to exercise his judgment fully, freely, and without favor, and he may exercise it without fear; that the duties concern individuals, but they concern more especially the welfare of the state, and the peace and happiness of society; that if he shall fail in the faithful discharge of them he shall be called to account as a criminal, but that in order that he may not be annoyed, disturbed, and impeded in the performance of these high functions, a dissatisfied individual shall not be suffered to call in question his official action in a suit for damages. This is what the state, speaking by the mouth of the common law, says to the judicial officer. The rule thus laid down applies to large classes of officers, embracing some the powers attached to which are very extensive, and others whose authority is exceedingly limited. It applies to the highest judge in the state or nation, but it also applies to the lowest officer who sits as a court and tries petty cases, and it applies not in respect to their judgments merely, but to all process awarded by them for carrying their judgments into effect(íhe Italics are ours.) This statement is followed in Yaselli v. Goff, supra, with the following statement:

“And the immunity which is extended to the judges is in like manner extended to the attorneys in the presentation of the client’s case to the court or the jury.”

From Munster v. Lamb, L. R. 11 Q. B. D. 588, 7 Eng. Rul. Cas. 714—C. A., wherein the court said: “to my mind it is illogical to argue that the protection of privilege ought not to exist for a counsel, who deliberately and maliciously slanders another person. The reason of the rule is, that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct.

“Not only are the judges exempt, but grand jurors are in like manner exempt from actions for malicious prosecution. In 17 Am. & Eng. Enc. Law p. 1302, the law is stated as follows: ‘However recklessly and maliciously a grand jury may have acted in returning an indictment against another without evidence or probable cause, the jurors are not liable to an injured person in an action for malicious prosecution.’ . . .

“A public office is an agency for the state, the duties of which involve in their performance the exercise of some portion of the sovereign power, either great or small. The rule of responsibility of a public officer, as held by the courts, is said to be that, if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an erroneous performance, is regarded as an injury to the public, and not as one to the individual. It is to be redressed in some form of public prosecution, and not by a private person who conceives himself specially injured. 2 Cooley, Torts 3d ed. p. 756. In Thibodaux v. Thibodaux, 46 La. Ann. 1528, 16 So. 450, it is said: ‘Officials in the performance of a duty imposed by law cannot be held in damages for acts done strictly within the lines of official duty.’ ” [— A.L.R. —, 12 F. (2d) 403.]

From Watts v. Gerking, 111 Or. 641, 34 A.L.R. 1489, 228 Pac. 135: “This doctrine being applicable to grand jurors, there is no good reason why it should not shield the prosecuting attorney from civil liability in the case at bar.” And it was also said: “In reaching' a decision, we are confronted with a determination that concerns public policy. We are face to face with a law enforcing problem. Criminal law does not enforce itself. It demands the assistance of valid evidence and fearless, officials to put it in execution. Because of their tendency to obstruct the administration of justice, it is the policy of the law to discourage-actions for malicious prosecution.”

Continuing in Yaselli v. Goff, supra, the court said: “The question, whether the immunity which attaches, as we hold it does, to a prosecuting officer, applies to shield one who conspires willfully and maliciously to get himself appointed as prosecutor, in order that he may willfully and maliciously indict and prosecute the person he seeks to punish. In. our opinion, the reasons which compel us to hold that one who obtains, an appointment as a prosecuting officer of the government is immune from civil liability for acts done by him in the discharge of his official duties apply in like manner to protect him against such a charge as that he was guverned by improper motives in securing the appointment. The-important fact is that he was appointed to the office, and, having been, appointed, the public interests require that he shall be free and fearless, to act in the discharge of his official duties. If he cannot be charged with, acting willfully and maliciously after he gets appointed to the office, no-more can he be charged with having conspired to get into the office in. order to act willfully and maliciously after he gets his appointment.. The one charge is as much to be feared as the other, and is equally derogatory to his public character and usefulness in the office. We are-unable to distinguish between the two eases in principle.”

In the case of Griffith v. Slinkard, 146 Ind. 117, 44 N. E. 1001, there was a demurrer to the complaint the substance of which is quotedi by the court in part as follows: “It shows also that the grand jury returned the indictment without any evidence against the appellant. It shows that . . . there was no evidence tending to establish his guilt,, and that they voted not to indict him, and yet the appellee, as prosecuting-attorney, maliciously wrote his name into the indictment without the-knowledge or consent of the grand’jury. And yet it is shown that it was-returned by the grand jury into open court and filed. This record must be held to import absolute verity that the grand jury did find and return into open court the alleged indictment. However reckless and malicious, the grand jury may have acted in returning an indictment against another without evidence or probable cause,'they are not liable to the in jured person in an action for malicious prosecution. Hunter v. Mathis, 40 Ind. 356.

“The question remains, is the prosecuting attorney any more liable for his alleged participation in procuring the indictment maliciously and without probable cause ? In State v. Henning, 33 Ind. 189, at page 191, this court said: ‘The turning point in the case is this: Is a prosecuting attorney an officer intrusted with the administration of justice ? He is a judicial officer, created by the constitution of the State. 1 Gavin & H. 47, § 11. He is the law officer of the court to whom is intrusted all prosecutions for felonies and misdemeanors. 2 Gavin & H. 430, § 4. He is the legal adviser of the grand jury. We think he is “an officer intrusted with the administration of justice.” ’ . . . ‘Whenever duties of a judicial nature are imposed upon a public officer, the due execution of which depends upon his own judgment, he is exempt from all responsibility by action for the motives which influence him and the manner in which said duties are performed. If corrupt, he may be impeached or indicted, but he cannot be prosecuted by an individual to obtain redress for the wrong which may have been done. No public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, and however malicious the motive which produced it.’ Townsend, Slander & Libel, 3d eel. § 227, pp. 395, 396.

“It was held in Parker v. Huntington, 2 Gray, 124, that an action against a district attorney and another person for maliciously contriving to have the plaintiff indicted for perjury, they knowing that he had not committed it, and by their false testimony obtaining a verdict of guilty against the plaintiff, which was afterwards set aside, cannot be maintained.

“There is therefore no more liability against the prosecuting attorney than there is against the grand jury for the return of an indictment maliciously and without probable cause.”

In the case of Smith v. Parman, 101 Kan. 115, L.R.A.1917F, 698, 165 Pac. 663, the court said: “The public prosecutor, in deciding whether a particular prosecution shall be instituted or followed up, performs much the same function as a grand jury. If, while he has a question of that kind under advisement, he is charged with notice that he may have to defend an action for malicious prosecution in case of a failre to convict, liis course may be influenced by that consideration, to the disadvantage of the public. . . .

“We think the reason for granting immunity to judges and grand jurors applies with practically equal force to a public prosecutor in his relations to actions to punish infractions of the law. There is no great danger that abuse of power will be fostered by this exemption from civil liability, for the prosecutor is at all times under the wholesome restraint imposed by the risk of being called to account criminally for official misconduct.”

In the case of Schneider v. Shepard, 192 Mich. 82, L.R.A.1916F, 399, 158 N. W. 182, and Shaw v. Moon, 117 Or. 558, 45 A.L.R. 600, 245 Pac. 318, the officers were held liable, for the reason, that they did not use the machinery which the law had provided for the prosecution of criminals. In the first case, the state’s attorney ordered an arrest without a complaint or warrant. In the second case, the justice of the peace issued a search warrant without the statutory affidavit. In each case the officer did not act in excess of his jurisdiction, but without any jurisdiction or authority in the law, and were therefore liable.

In the instant case, the state’s attorney did not act without statutory law, but used all the machinery which the law provides.

In the case of Watts v. Gerking, supra, the complaint alleged, that the prosecuting attorney instigated others to swear falsely against the plaintiff, in an affidavit for a search warrant knowing at the time that the plaintiff was innocent.

In Yasseli v. Goff (C. C. A. 2d) — A.L.R. —, 12 F. (2d) 396, the complaint alleged, that the defendant conspired to get himself appointed as prosecutor in order that he might have the plaintiff indicted.

In Griffith v. Slinkard, supra, the complaint alleges, that the prosecuting attorney maliciously wrote the plaintiff’s name into an indictment, after the grand jury had voted not to indict, and thus maliciously procured an indictment against the plaintiff. In each of these 'cases it is alleged, that the prosecuting officer instigated others to institute criminal procéedings, and the law makes no distinction between what one does personally and what he procures others to do. If a prosecuting attorney is liable for swearing to a complaint himself he would also be liable if he procured another to swear to the complaint.

In the instant case, if the state’s attorney after deciding that the evidence before him was sufficient had gone before a grand jury, and procured an indictment, he would not be liable, for the reason, <hat he is a public prosecutor, and it would be his duty to present the evidence: to the grand jury. It is none the less his duty to act on the evidence which he deems sufficient, in the absence of a grand jury, for the law-substituting his office for the grand jury never intended that his immunity in the commencement of a criminal action should be less than that of a grand juror.

We cannot say, as the plaintiff contends, that the state’s attorney, a-public officer, sworn to enforce the criminal law, and charged with the-duty of determining when to commence a prosecution and when to discontinue it, acted as a private citizen in the prosecution of the case. The-letters were mailed to him because he was state’s attorney, and it is-presumed that in the exercise of that discretion which the law reposes, in him he acted as state’s attorney in the institution of the prosecution,, net only in passing upon the question of the sufficiency 'of the evidence before him, but also, in making1 a complaint before a justice of the peace upon which warrant might issue and make effective his decision that the evidence was sufficient. Why does the statute give him, and him only,, the authority to pass upon the evidence and say when a warrant shall' issue ? The authority is given to him, so that he may, in fact it is made-his duty to commence a prosecution when in his judgment the evidence-is sufficient, and it would be ridiculous to hold that after deciding that, evidence was sufficient, that he could only make complaint on that evidence at his peni. As Judge Cooley said and as herein before quoted:: “It [the principle] applies not in respect to their judgments merely,. but to all pi'oeess awarded by them for carrying their judgments into- effect"

The state’s attorney acts for the state. His act in passing upon the sufficiency of evidence as the basis of a criminal prosecution is the act. of the state, and if he makes a mistake (as he sometimes will) it is the-mistake of the state.- Judges of all courts, high and low, county commissioners, justices of the peace and grand jurors are not liable in a. civil action for their judicial mistakes, and it would be strange indeed, if the state’s attorneys of this state, who are charged with the resporvsibililies of grand jurors in the prosecution of crime, in their respective-counties, are not exempt from civil liability for judicial mistakes.

The first letter received by the state’s attorney, charged the plaintiff with a continuing crime, and further stated, “that if you don’t see to it, and get her out of town there is a Women’s Club in town that will ■either lynch or tar and feather her.” It was not only a statement of the •commission of a continuing crime, but a threat of disturbance of the public peace, and of violence against the plaintiff.

The second letter purporting to be signed by the plaintiff amounted to an admission of guilt, and was further a plea in extenuation, or excuse, an appeal to the state’s attorney for protection, or at least for noninterference.

If the lettei’s were true, action should be taken immediately for threats of violence were made, the public peace was threatened.

The doctrine of exemption of judicial and quasi judicial officers, is founded upon a sound public policy, not for‘the protection of the officers, but for the protection of the public, and to insure the active and independent action of the officers charged with the prosecution of crime, for the protection of life, and property. It applies to the office of the state’s attorney in this state.

Since the enactment of chapter 71, Sess. Laws 1890, p. 246, prosecutions by indictment are almost obsolete. The burden of investigation, formerly made the duty of grand jurors, has by legislative enactment been made the duty of the state’s attorney and when he passes judgment on the sufficiency of the evidence before a justice of the peace before approving the issuance of a warrant, or upon the sufficiency of the evidence within his own knowledge the passing of such judgment is a judicial act, and he is not liable therefor in a civil action if he malees a mistake, or for having process issued to make effective his decision.

The fact that the law gives the state’s attorney power to subpoena witnesses in the investigation of infractions of certain laws, does not make it any less his duty to use all the machinery the law places in Ins hands for the enforcement of other laws where he has not such power. The reasoning that the state’s attorney after passing upon the sufficiency of the evidence before him may not make complaint himself without liability, but may have some other person make the complaint on the same evidence without liability simply leads to an absurdity.

The judgment of the lower court is affirmed.

Nuessle and Birdzell, JJ., concur.