Front Page Titles (by Subject) § 24.: Security to reputation—Malicious prosecution.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1
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§ 24.: Security to reputation—Malicious prosecution.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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Security to reputation—Malicious prosecution.—
Although a prosecution on the charge of some crime may result in a verdict of acquittal, even where the trial would furnish to a judicial mind a complete vindication, by removing all doubts of the innocence of the accused, it will nevertheless leave its mark upon the reputation. Even a groundless acccusation will soil one’s reputation. But it is to the interest of the public, as well as it is the right of the individual, that resort should be made to the courts for redress of what one conceives to be a wrong. While a litigious spirit is to be deprecated, since in the institution of legal order the right to self-defense is taken away, except as an immediate preventive of attacks upon person and property, it is not only expedient but just, that when a man believing that he has a just claim against the defendant, or that this person has committed some act which subjects him to a criminal prosecution, sets the machinery of the law in motion, he should not be held responsible for any damage that might be done to the person prosecuted, in the event of his acquittal. The good faith of the prosecutor should shield him from liability. Any other rule would operate to discourage to a dangerous degree the prosecution of law-breakers, and hence it has been recognized as a wise limitation upon the right of security to reputation. But the interests of the public do not require an absolute license in the institution of groundless prosecutions. The protection of privilege is thrown around only those who in good faith commence the prosecution for the purpose of securing a vindication of the law, which they believe to have been violated. Hence we find that the privilege is limited, and, as it is succinctly stated by the authorities, in order that an action for malicious prosecution, in which the prosecutor may be made to suffer in damages, may be sustained, three things must concur: there must be an acquittal of the alleged criminal, the suit must have been instituted without probable cause, and prompted by malice.
A final acquittal is necessary, because a conviction would be conclusive of his guilt. And even where he is convicted in the court below, and a new trial is ordered by the superior court for error, the conviction is held to be conclusive proof of the existence of probable cause.1 But an acquittal, on the other hand, does not prove the want of probable cause, does not even raise the prima facie presumption of a want of probable cause. Probable cause, as defined by the Supreme Court of the United States, is “the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime, for which he was prosecuted.”2
The want of probable cause cannot be inferred; it must be proven affirmatively and independently of the presence of actual malice. The plainest proof of actual malice will not support an action for malicious prosecution, if there be probable cause. With probable cause, the right to institute the prosecution is absolute, and the element of malice does not affect it.3 But when it has been shown that the defendant in the prosecution has been acquitted and that the suit had been instituted without probable cause, the malice need not be directly and affirmatively proved. It may be inferred from the want of probable cause. The want of probable cause raises the prima facie presumption of malice, and throws upon the prosecutor the burden of proving that he was not actuated by malice in the commencement of the prosecution.1 But this presumption may be rebutted by the presentation of facts, which indicate that the prosecutor was actuated solely by the laudable motives of bringing to justice one whom he considers a criminal. The want of probable cause is not inconsistent with perfect good faith. The prosecutor may have been honestly mistaken in the strength of his case. But when a man is about to institute a proceeding which will do irreparable damage to a neighbor’s reputation, however it may terminate, it is but natural that he should be required to exercise all reasonable care in ascertaining the legal guilt of the accused. As it was expressed in one case:2 “Every man of common information is presumed to know that it is not safe in matters of importance to trust to the legal opinion of any but recognized lawyers; and no matter is of more legal importance than private reputation and liberty. When a person resorts to the best means in his power for information, it will be such a proof of honesty as will disprove malice and operate as a defense proportionate to his diligence.” In order, therefore, that the prosecutor may, where a want of probable cause has been established against him, claim to have acted in good faith and thus screen himself from liability, he must show that he consulted competent legal counsel, and that the prosecution was instituted in reliance upon the opinion of counsel that he had a good cause of action.
Witham v. Gowen, 14 Me. 362; Payson v. Caswell, 22 Me. 212; Whitney v. Peckham, 15 Mass. 242; Bacon v. Towne, 4 Cush. 217; Kirkpatrick v. Kirkpatrick, 39 Pa. St. 288; Griffs v. Sellars, 4 Dev. & Bat. 176.
Wheeler v. Nesbit, 24 How. (U. S.) 545. See Gee v. Patterson, 63 Me. 49; Barron v. Mason, 31 Vt. 189; Mowry v. Whipple, 8 R. I. 360; Stone v. Stevens, 12 Conn. 219; Carl v. Ayres, 53 N. Y. 13; Farnam v. Feeley, 55 N. Y. 551; Fagnan v. Knox, 65 N. Y. 525; Winebiddle v. Porterfield, 9 Pa. St. 137; Boyd v. Cross, 35 Md. 194; Spengle v. Davy, 15 Gratt. 381; Braveboy v. Cockfield, 2 McMul. 270; Raulston v. Jackson, 1 Sneed, 128; Faris v. Starke, 3 B. Mon. 4; Collins v. Hayte, 50 Ill. 353; Gallaway v. Burr, 32 Mich. 332; Lawrence v. Lanning, 4 Ind. 194; Shaul v. Brown, 28 Iowa, 57 (4 Am. Rep. 151); Bauer v. Clay, 8 Kan. 580.
Williams v. Taylor, 6 Bing. 183; Cloon v. Gerry, 13 Gray, 201; Heyne v. Blair, 62 N. Y. 19; Travis v. Smith, 1 Pa. St. 234; Bell v. Pearcy, 5 Ired. 83; Hall v. Hawkins, 5 Humph. 357; Israel v. Brooks, 23 Ill. 575; King v. Ward, 77 Ill. 603; Mitchinson v. Cross, 58 Ill. 366; Callahan v. Caffarati, 39 Mo. 136; Sappington v. Watson, 50 Mo. 83; Malone v. Murphy, 2 Kan. 250.
Merriam v. Mitchell, 13 Me. 439; Mowry v. Whipple, 8 R. I. 360; Closson v. Staples, 42 Vt. 209; Panghurn v. Bull, 1 Wend. 345; McKewn v. Hunter, 30 N. Y. 624; Dietz v. Langfitt, 63 Pa. St. 234; Cooper v. Utterbach, 37 Md. 282; Flickinger v. Wagner, 46 Md. 581; Ewing v. Sanford, 19 Ala. 605; Blass v. Gregor, 15 La. Ann. 421; White v. Tucker, 16 Ohio St. 468; Ammerman v. Crosby, 26 Ind. 451; Harpham v. Whitney, 77 Ill. 32; Holliday v. Sterling, 62 Mo. 321; Harkrader v. Moore, 44 Cal. 144.
Campbell, J., in Stanton v. Hart, 27 Mich. 539.