Schattgen v. Holnback

Citations

• 149 Ill. 646
• 36 N.E. 969

Syllabus

<p>1. Malicious prosecution—gist of the action—defective complaint. It is not necessary, in order to sustain this action, to show that the affidavit, information or indictment properly charged the offense for which the plaintiff was prosecuted. The gist of the action is the criminal prosecution, instituted with malice and without probable cause, resulting in damage to the plaintiff, by depriving him of his liberty, injuring his reputation or putting him to expense. These concur in a prosecution upon an insufficient information, the same as upon a sufficient one.</p> <p>2. Same—probable cause—question for the jury. Where the faéts relied on as showing probable canse are controverted, it is very clear that they must be settled by the verdict of a jury before tile court can apply the law to them. In such case, the practice in this State is to treat it as a mi-xed question of law and fact, to be submitted to the jury, under instructions as to what amounts, in law, to probable cause.</p> <p>3. On the trial of an action for malicious prosecution, the jury, on behalf of the defendant, were instructed, that if they “believe, from the evidence, that the defendant, when he instituted the prosecution complained of, honestly believed the plaintiff was guilty of the offense charged, and the defendant’s belief was founded on a knowledge of circumstances tending to show guilt, and sufficient to induce in the mind of an ordinarily reasonable, cautious man the belief of such guilt, then such belief on the part of the defendant negatives the idea of the want of probable causeHeld, that the question of probable cause having been properly submitted to the jury, this court, being without means of knowing what particular facts were found, was powerless to determine, as matter of law, whether probable cause existed or not.</p> <p>4. Same—advice of counsel—as a defense. Am instruction in an action for malicious prosecution, which seeks to present the advice Of an attorney as a defense, sho