Eversoll v. Mosher

Hallam, J. (dissenting.) I cannot assent to the mulcting of defendant in damages for malicious prosecution. Clearly, it seems to me, he acted upon probable cause. When plaintiff was arraigned before the justice of the peace the complaint was read to him and the justice asked him whether he was guilty or not guilty. He asked if he might consult the county attorney. Permission was given. He and the county attorney retired together and, after conference, plaintiff pleaded guilty. Plaintiff testified that the county attorney told him that was the best thing for him to do, and, after hearing his statement, the county attorney proceeded with the prosecution. When plaintiff was arraigned in district court, Mr. McMahon was appointed as his attorney to defend him. They consulted together. Plaintiff said his attorney “knew the state of facts,” that they had talked the thing all over in his office and went from there to the court. There Mr. McMahon made a long statement. He told the *456 court lie bad spent an hour and a half with plaintiff; that plaintiff was willing to enter a plea of guilty; that “be believed when be took this team of borses, * * * that be bought those borses from Mr. Mosher.” He bad been in possession of them for three years and bad paid taxes on them. Mr. McMahon further said: “I asked if be received a bill of sale or gave a note or mortgage or bad any evidence that be purchased the team and be said no except one witness that was dead * * * so I get from bis testimony and from bis own admissions to me that be never bad any title to those borses. He might have thought be did but be didn’t. * * * I believe * * * that technically be would be perhaps found guilty by a jury * * * the chances are be might be found guilty by a jury supposing be should take the stand and go and face a trial.” It is apparent therefore that Mr. McMahon was fully possessed of all the facts as plaintiff claimed them to be. With this state of facts I think there was probable cause as a matter of law. What better proof of probable cause can we have than the belief of the accused and of bis attorney that the accused is guilty, a belief arrived at after full statement of the facts by the accused. I think also that defendant was protected by the advice of the county attorney. Plaintiff made bis own statement to the county attorney and after bearing bis version of the case the county attorney advised him be was guilty and proceeded with the prosecution. A complainant should not be required to make a more exculpatory statement to counsel than the accused makes for himself.