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77 Mich. 96

Thurston v. Wright

Michigan Supreme Court

Decided October 25, 1889

Michigan Supreme Court · decided 1889-10-25

<p>False imprisonment — Malicious prosecution — Evidence.</p> <p>1. In an action for false imprisonment and malicious prosecution, it, is competent for the justice of the peace who issued the warrant to state fully what took place when the parties first appeared before him, and what proceedings were had; and he may be asked, on cross-examination by the defendant, “what conduct before him in the proceedings, or in his presence or hearing, on the part of the defendant, disclosed to him any maliciousness or over-anxiety to prosecute the criminal case, if any.”</p> <p>2. In such, a case a letter from the prosecuting attorney, authorizing the commencement of the prosecution, is admissible as tending to show motive, and probable cause that an offense h.ad been committed, and that the usual course was taken in. such cases.</p> <p>3. Where in a false imprisonment case the plaintiff is allowed, in . proving damages, to show that he had subpcenaed witnesses, and the amount he had paid them, he may be asked on cross-examination to state the specific amount paid a given witness.</p> <p>4. In a suit for false imprisonment and malicious prosecution the plaintiff may show exhibition of feeling on the part of the defendant after the suit was brought, as having some tendency to show motive, if connected with the matter in controversy.</p> <p>5. While it is true that every kind of ill feeling is not necessarily indicative of malice, yet malice may be proved by evidence of defendant’s conduct and declarations; and if such conduct resulted in a wrong done to plaintiff, statements indicating ill feeling towards the plaintiff may be introduced in evidence, as bearing upon the intent with which the wrongful act was committed. Malice may be inferred by the jury from all the facts and circumstances given in evidence, and expressions of ill feeling are circumstances which are proper to be submitted to the jury. Mere expressions of dislike or ill will by one towards another, unaccompanied by acts, do not constitute malice in the legal sense. But where an act has been done,— such as instituting a prosecution, — then such expressions become relevant upon the question of malice.</p> <p>6. Defendant’s requests to charge were properly refused, for the reason that two important elements were omitted necessary to be shown in an action for malicious prosecution for commencing a criminal suit, namely, that defendant made a full and fair statement of all the facts known to him to the prosecuting • attorney, who authorized the issuance of the warrant, and to his private attorney, who advised him in the premises, and that he acted upon such advice in good faith.</p>

Cited by 5 later decisions — most recently March 1927

5 state decisions

Relies on Schippel v. Norton · Murphy v. Walters · Jones v. Jones

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1889-10-25

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Champlin, J.

¶1I cannot concur in the opinion of the Chief Justice that the court went too far when he charged the jury upon the subject of malice that they might consider—

“Any statements you may find which he has made in which he has expressed ill feeling against the plaintiff, if you find he has made such statements.”

¶2*103While it is true that every kind of ill feeling is not necessarily indicative of malice, yet malice may be proved by evidence of the defendant’s conduct and declarations; and if such conduct resulted in a wrong done to plaintiff, statements indicating ill feeling towards the plaintiff may be introduced in evidence, as bearing upon the intent with which the wrongful act was committed. Malice may be inferred by the jury from all the facts and circumstances given in evidence, and expressions of ill feeling are circumstances which are proper to be submitted to the jury. Mere expressions of dislike or ill will by one towards another, unaccompanied by acts, do not constitute malice in the legal sense. But where an act has been done, — such as instituting a prosecution, — then such expressions become relevant upon the question of malice.

¶3Neither can I agree in the opinion that the requests to charge the jury, made by the defendant, and embodied in the opinion of the Chief Justice, should have been given. They omit two important elements:

¶41. That defendant made a full and fair statement of all the facts known to him to the prosecuting attorney, and to Frank B. Case, his attorney.

¶52. That he acted upon such advice in good faith. Mesher v. Iddings, 72 Iowa, 553 (34 N. W. Rep. 328); Donnelly v. Daggett, 145 Mass. 314 (14 N. E. Rep. 161); Jones v. Jones, 71 Cal. 89 (11 Pac. Rep. 817); Schippel v. Norton, 38 Kan. 567 (16 Pac. Rep. 804); Chambers v. Upton, 34 Fed. Rep. 473; Johnson v. Miller, 69 Iowa, 562 (29 N. W. Rep. 743); Josselyn v. McAllister, 22 Mich. 309; Stanton v. Hart, 27 Id. 541.

¶6The case of Murphy v. Walters, 34 Mich. 180, is cited as sustaining the requests to charge. Had this case been an action for false imprisonment merely, and not for malicious prosecution, the case would have been in point. But this case proceeded upon the theory that the prosecution was malicious. There was a count in the *104declaration for that cause of action, and under this count the authority cited is not in point, and to have given the charge as requested would have been erroneous.

¶7I concur in reversing the judgment upon the other points stated in the opinion of the Chief Justice.

Morse and Long JJ., concurred with Champlin, J.
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