seem unnecessary to give to the jury any difficulty here is that the last sentence of definition of the term, or any instruction the instruction quoted, although open to a upon abstract propositions relating to this different construction, naturally tended to subject. These abstract rules will guide the lead the jury to understand that they were court in determining the question, but are to decide for themselves whether the facts apt to lead the jury away from their func-known to the defendant when he caused the tion of passing upon the effect of the evidence in support of the probative facts which the court may direct them to find in order to determine in which way their

Pa. Travis v. Smith, 1 Pa. St. 234, 44 Neb.-Turner v. O'Brien, 5 Neb. 542 Am. Dec. 125; Beach v. Wheeler, 24 Pa. (and see subsequent appeal in 11 Neb. 108, 212 (per Hare, J., charging jury); Laugh7 N. W. 850); Ross v. Langworthy, 13 Neb. | lin v. Clawson, 27 Pa. 328; Graff v. Bar492, 14 N. W. 515; Dreyfus v. Aul, 29 Neb. rett, 29 Pa. 477; Fisher v. Forrester, 33

Q. At the time defendant filed complaint, did he believe that plaintiff's and her husband's house was a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage? A. Yes, to some extent.

Two of the special questions and answers they mean that Matson did believe Mrs. read as follows: Michael guilty, but had formed that opinion The natural upon insufficient information. conclusion is that the jury were guided by their own judgment as to what information would be enough to serve as the basis for such an opinion. It is true the court elsewhere enumerated the grounds relied upon by the defendant as justifying the arrest, and instructed the jury that, if the facts were as he claimed, they constituted probable cause, and he was entitled to a verdict; but the qualifying words were added, "unless you should further find that the defendant himself, after consulting with an attorney, believed there was no probable cause for the prosecution." The addition limited the effect of the rest of this instruction, and thus Am. St. Rep. 1063, 111 N. W. 668, 11 Ann. Cas. 951.

Q. At the time the defendant filed complaint, had he been informed, and did he honestly believe, that the house of the plaintiff and her husband was a place where persons were permitted to resort for the purpose of drinking intoxicating liquors? A. No, he had some information, but not enough to base an honest belief on.

These findings are either in conflict, or Pa. 501; Dietz v. Langfitt, 63 Pa. 234; Mc-| Carthy v. De Armit, 99 Pa. 63; Walbridge v. Pruden, 102 Pa. 1; Sutton v. Anderson, 103 Pa. 151; Mahaffey v. Byers, 151 Pa. 92, 25 Atl. 93; Leahey v. March, 155 Pa. 458, 26 Atl. 701; Barhight v. Tammany, 158 Pa. 545, 38 Am. St. Rep. 853, 28 Atl. 135; Burk v. Howley, 179 Pa. 539, 57 Am. St. Rep. 607, 36 Atl. 327; Boyd v. Kerr, 216 Pa. 259, 65 Atl. 674; Robitzek v. Daum, 220 Pa. 61, 69 Atl. 96; Weinberger v. Shelly, 6 Watts & S. 336; Acker v. Gundy, 9 Sadler (Pa.) 452, 12 Atl. 595; Bruff v. Kendrick, 21 Pa. Super. Ct. 468: Scott v. Dewey, 23 Pa. Super. Ct. 396; Bryant v. Kuntz, 25 Pa. Super. Ct. 102; Brown v. Waite, 38 Pa. Super. Ct. 216; Cole v. Reece, 47 Pa. Super. Ct. 212; Bosley v. Gerrity, 55 Pa. Super. Ct. 429; and see Elbert v. Folwell, 1 W. N.

C. 228.

S. C.-Thomas v. Rouse, 2 Brev. 75; Nash v. Orr, 3 Brev. 94, 5 Am. Dec. 547; Paris v. Waddell, 1 McMull. L. 358.

Tenn. Kelton v. Bevins, Cooke (Tenn.) 90, 5 Am. Dec. 670; Memphis Gayoso Gas Co. v. Williamson, 9 Heisk. 314.

Tex.-Landa v. Obert, 45 Tex. 539; Ramsey v. Arrott, 64 Tex. 320; Gulf, C. & S. F. R. Co. v. James, 73 Tex. 12, 15 Am. St. Rep. 743, 10 S. W. 744.

Vt. French v. Smith, 4 Vt. 363, 24 Am. Dec. 616; Closson v. Staples, 42 Vt. 209, 1 Am. Rep. 316; Driggs v. Burton, 44 Vt.

That is, in any given case, notwithstanding the condition of the evidence, which, as is hereafter pointed out, may, in the majority of cases, have to be submitted to the jury to ascertain what facts really exist,-it is the duty of the court to say whether or not, in point of law, the facts and circumstances found to exist amount to probable cause. And it is precisely in this sense, it seems, that the statement that probable cause is a question of law for the court is used.

Thus, in Ball v. Rawles, 93 Cal. 222. 27 Am. St. Rep. 174, 28 Pac. 937, a leading case in this country on this subject, the court said: "Whether the defendant had or had not probable cause for instituting the prosecution is always a matter of law to If the facts be determined by the court. upon which the defendant acted are undisputed, the court, according as it shall be of the opinion that they constituted probable cause or not, either will order a nonsuit (or direct a verdict for the defendant), or it will submit the other issues to the jury; but whether admitted or disputed, the question is still one of law to be determined by the court from the facts established in the case. If the facts are controverted, they must be passed upon by the jury before the court can determine the issue of probable cause; but the question of probable cause can never be left to the determination of the jury. What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact. The former is exclusively for the court, the latter for the jury.' 'When (Stone v. Crocker, 24 Pick. 84.) there is no dispute about the facts, the question of the want of probable cause is for the determination of the court: where doubtful, the facts are controverted or whether they are proved or not, belongs to the jury to decide: in other words, Wis.-Woodworth v. Mills, 61 Wis. 44, whether the circumstances alleged are true 50 Am. Rep. 135, 20 N. W. 728; King v. is a question of fact; but if true, whether Apple River Power Co. 131 Wis. 575, 120' they amount to probable cause is for the

124.

Va.-Crabtree v. Horton, 4 Munf. 59; Boush v. Fidelity & D. Co. 100 Va. 735, 42 S. E. 877.

Wash.-Levy v. Fleischner, 12 Wash. 15, 40 Pac. 384; Richardson v. Spangle, 22 Wash. 14, 60 Pac. 64; Voss v. Bender, 32 Wash. 566, 73 Pac. 697; Finigan v. Sullivan, 65 Wash. 625, 118 Pac. SSS; Baer v. Chambers, 67 Wash. 357, 121 Pac. 843, Ann. Cas. 1913D, 559; Anderson v. Seattle Lighting Co. 71 Wash. 155, 127 Pac. 1108.

W. Va.-Vinal v. Core, 18 W. Va. 1; Moats v. Rymer, 18 W. Va. 642, 41 Am. Rep. 703.

or

prevented a correction of the misleading accused person is guilty. Yet he may suptendency of the other. It necessarily in- pose, through ignorance of the law, that troduced a new, irrelevant, and confusing "probable cause" does not exist, and that element into the problem, the defendant's if he fails to procure a conviction he is understanding as to what constitutes proba- answerable in damages. Plainly he would ble cause in law. Belief that probable cause not be liable under such circumstances. exists for the arrest of a person is obviously Probable cause would exist in fact and a different thing from a belief that he is would afford him a perfect defense, whatguilty. The latter is often said to be an es- ever might be the result of the prosecution. sential ingredient of probable cause, al- The instruction given in this respect was though many of the definitions omit it. 26 clearly erroneous, and under all the cirCyc. 29; 19 Am. & Eng. Enc. Law, 663; 6 cumstances of the case, must be deemed to Words & Phrases, 5620 et seq; note, in 26 have been prejudicial. Am. St. Rep. 140. The former has no materiality in this kind of an action unless as bearing upon the question of malice. A man may cause an arrest under a reasonable belief, founded on abundant evidence, that the court.' (Bulkeley v. Keteltas, 6 N. Y. 387.) | Probable cause is in the nature of a judgment to be rendered by the court upon a special verdict of the jury, and is not to be rendered until after the jury has given its verdict upon the facts by which it is to be determined. It is not, however, necessary that the facts be found by the jury in the form of a special verdict. The court may instruct them to render their verdict for or against the defendant according as they shall find the facts designated to it which the court may deem sufficient to constitute probable cause. But it is necessary for the court, in each instance, to determine whether the facts that they may find from the evidence will or will not establish that issue. Neither is it competent for the court to give to the jury a definition of probable cause, and instruct them to find for or against the defendant according as they may determine that the facts are with in or without that definition. Such an instruction is only to leave to them in another form the function of determining whether there was probable cause. The court cannot devest itself of its duty to determine this question, however complicated or numerous may be the facts. It must instruct the jury upon this subject in the concrete, and not in the abstract, and must not leave to that body the office of deter mining the question, but must itself determine it, and direct the jury to find its verdiet in accordance with such determination. | Am. Dec. 572, Chief Justice Taylor (who The court should group in its instructions the facts which the evidence tends to prove, and then instruct the jury that if they find such facts to be established, there was or was not probable cause, as the case may be, and that their verdict must be accordingly."

And in Beale v. Roberson, 29 N. C. (7 Ired. L.) 280, the court had this question under consideration, and reviewing the earlier cases, said: "This case brings up again the question whether probable cause is matter of law, so as to make it the duty of the court to direct the jury that, if they find certain facts upon the evidence, or draw from them certain other inferences

The probability that the jury misconceived the issues to be determined by them is increased by the fact that, in the next instruction, they were directed to consider, as bearing upon the matter of probable cause, of fact, there is or is not probable cause; thus leaving the questions of fact to the jury, and keeping their effect, in point of reason, for the decision of the court, as a matter of law. Upon that question, the opinion of the court is in the affirmative; and therefore this judgment must be reversed. The point is concluded in the state by repeated adjudications. It was first presented in the case of Legget v. Blount, 4 N. C. (Term Rep. 123) 7 Am. Dec. 702, in which the judge told the jury, after the examination of many witnesses on both sides touching the alleged probable cause, that there was probable cause; and the judgment was reversed, because the judge had assumed the decision of the whole case, including the facts, as well as the law. But it was distinctly admitted, or rather affirmed, there, that probable cause, as an abstract question, is one of law, and to be decided by the judge according to the doctrine in Sutton v. Johnstone, 1 T. R. 510, 1 Bro. P C. 76, 1 Revised Rep. 269, 1 Eng. Rul. Cas. 765, and the authorities therein cited; which established that upon a special plea and demurrer, or a special verdict, the court determines that question, and that, even when there is a general verdict for the plaintiff, it is the province of the court to say whether certain facts, appearing on the declaration, do not amount to probable cause. In the subsequent case of Plummer v. Gheen, 10 N. C. (3 Hawks) 66, 14

had tried the case of Legget v. Blount),
delivered the opinion of this court, and ad-
mitted that the superior court had ex-
plained to the jury correctly what probable
cause was, but yet held that it was a ques-
tion of law whether the circumstances, be-
ing true, amounted to probable cause, and
that the parties had a right to the opinion
of the court distinctly on it; and the judg
ment was reversed, because upon very com-
plicated and contradictory evidence, the
presiding judge had left that question to
the jury. In Cabiness v. Martin, 14 N. C.
(3 Dev. L.) 454, the presiding judge de-
cided the question of probable cause, and
this court reversed the judgment, not be-

ment of law, his action will of necessity call the attention of the public to the disregard of law and the dangerous consequences following therefrom. His action will oftentimes awaken a community to a just realization of its duty, and arouse its members from indifference to a willing obedience to all that the law demands. His action will oftentimes result in enlightening public

in favor of the enforcement of all the laws." Page 42.

the question whether the defendant believed he had sufficient evidence to convict the plaintiff of the offense charged against her. The chances of conviction depend upon too many conditions to make the prosecutor's opinion of the prospects in that respect a factor in determining the existence of probable cause. An adverse public sentiment might make the conviction of a notoriously guilty person almost hopeless, and yet the sentiment and in crystallizing public opinion institution of a prosecution might be not only justifiable, but praiseworthy, and, in the case of a public officer, obligatory. As was said in State ex rel. Johnston v. Foster, 32 Kan. 14, 3 Pac. 534: "If a county attorney vigilantly and earnestly discharges his duty by frequent prosecutions in a community seemingly indifferent to the enforcecause he assumed what was not within his province, but because he had decided wrong, as we thought, by holding a certain fact, if found by the jury, to be probable cause, which we deemed not to be so. And, in the two cases of Swaim v. Stafford, 26 N. C. (4 Ired. L.) 392 and 398, the question was again decided as matter of law,-it being held, in the one case, that there was, and in the other, that there was not, probable cause. Such a series of decisions, in our own courts, the same way, would protect the doctrine laid down in them from being drawn into debate now, even if we entertained doubts of its correctness originally. But, independent of authority, our reflections satisfy us that the principle is perfectly sound. It is a question of reason whether certain ascertained facts and circumstances constitute a probable and rational ground for charging a particular person with crime. If, indeed, the question was what was the actual belief of the prosecutor, respecting the other's guilt, it would be purely one of fact, and proper for the jury exclusively, as that of malice is. But that is not the question in such cases. It is true, indeed, as his Honor told the jury in this case, if a prosecutor knows the person whom he accuses, to be innocent, or does not believe the apparent circumstances of suspicion against him, that then he has no probable cause for prosecuting, however other persons, not knowing or believing as he did respecting the evidence, might justly entertain suspicions of the party's guilt. But while a prosecutor's belief of the innocence of the person charged may deprive the former of the pretense of probable cause, it does not follow, e converso, that the prosecutor's belief of the other's guilt shall excuse him; for he must take care that he acts only on a reasonable belief, a just suspicion; in other words, that he had, under the circumstances in which he was placed, as found in fact by the jury, a probable cause to think the party guilty, so that he might fairly and honestly call him to answer the charge. It is not, therefore, what a prosecutor believed, but what he ought to have believed, that justifies. If

The only other question which is thought to require discussion relates to the admission of evidence. The county attorney was called as a witness by the plaintiff, and was permitted to relate a conversation between Matson and himself relating to the liquor he has not the capacity to weigh the circumstances justly, or finds his dispositions towards a suspected person interfering with the coolness of his deliberations and the impartiality of his conclusions, it is his plain duty to consult those whose passions are not heated, and whose knowledge will enable them to judge more correctly, and not at once rashly to accuse an innocent person upon insufficient grounds. Now, our inquiry is whether, for the determination of the question as to the sufficiency or the insufficiency of the grounds of suspicion, supposing them to exist in fact, the court or the jury be the more competent; and we think, very clearly, that the court is, because it is a question of general and legal reasoning, and can best be performed by those whose professional province and habit it is to discuss, weigh, and decide on legal presumptions. The only argument against that is the difficulty in cases of many and complicated facts and contradictory evidence, as in Plummer v. Gheen, of properly separating to the comprehension of the jury, and to the satisfaction of the judge, the matters of law and fact. But that only proves the difficulty of deciding such cases, whether by the court or jury, and does not at all help us in saying, whether this or that point should be decided by the one or the other. But, as was said by counsel in the case of Panton v. Williams, 2 Q. B. 169, 1 Gale & D. 504, 10 L. J. Exch. N. S. 545, however great that difficulty may be, it is one which a judge can deal with better than a jury; as he does with reasonable time, due diligence, and legal provocation and the like; and in the case just referred to, which was cited by the plaintiff's counsel, the point now under consideration was, after elaborate discussion, decided in the exchequer chamber, upon a writ of error to the Queen's bench. The court held, unanimously, that in an action of this sort, if the defendant sets up facts as showing probable cause, the judge must determine whether the facts, if proved, or any of them, constitute such cause leaving it to the jury to decide only whether the facts, or those inferred from them, exist; and as

prosecution, before it was dismissed. The defendant objected to this on the ground that his statements to the county attorney, under the circumstances, were privileged. We think the objection should have been sustained, not on the theory that the relation of attorney and client existed, thus rendering the communication incompetent under the statute (Civ. Code, § 323; Gen. Stat. 1901, § 4771, subdiv. 4), but for the reason that the evidence was inadmissible on the grounds of public policy. The rule forbidding an attorney to disclose his client's secrets exists independent of the statute. Its basis is not the mere fact that the communication was confidentially made. Barnes v. Harris, 7 Cush. 576, 578, 54 Am. Dec. 734. The reason for its existence is

that "the law has considered it the wisest policy to encourage and sanction this confidence, by requiring that on such facts the mouth of the attorney shall be forever sealed." Hatton v. Robinson, 14 Pick. 416, 25 Am. Dec. 415. In Jones on Evidence, 2d ed. § 749, it is said: "Communications made to the district attorney or other public prosecutor are governed by the same rule, and, if there is any difference, the confidence reposed in the attorney in such cases is even more sacred than that reposed in others." The interest of the public in protecting the privacy of a communication seems, indeed, greater when it is made to a prosecuting officer in that capacity than when it is made by a client to his attorney. Persons having knowledge regarding the that is so when the facts are few and the | This rule is founded upon grounds of public case simple, it cannot be otherwise when policy, in order to encourage the exposure the facts are numerous and complicated. of crime, and when the acts of the citizen It would seem, then, that making a ques-in making such exposure are challenged as tion on this subject must be regarded as an attempt to move fixed things, and cannot be successful either in England or here. As the case goes back to another trial, on which the facts may appear differently, we think it unnecessary to consider those that came out on the former trial, in reference to the question of probable cause, further than to remark that few cases, perhaps, could better illustrate the danger of leaving that question to the discretion of a jury, whose decision of it is not susceptible of review in another court."

1. Reason of rule.

While naturally and logically, as previously stated, probable cause would seem to present a question of fact for the determination of the jury, the rule requiring the court to say what facts and whether particular facts amount to the probable cause is not without good reason, for it appears to be founded upon grounds of public policy. Thus, in Ball v. Rawles, 93 Cal. 228, 27 Am. St. Rep. 174, 28 Pac. 937, the court said: "Actions for malicious prosecution have never been favored in law, although they have always been readily upheld when the proper elements therefor have been presented. They are sustained, however, only when it is shown that the prosecution was in fact actuated by malice, and that the party instigating it had no reasonable ground for causing the prosecution. It is for the best interests of society that those who offend against the laws shall be promptly punished, and that any citizen who has good reason to believe that the law has been violated shall have the right to cause the arrest of the offender. For the purpose of protecting him in so doing, it is the established rule that if he have reasonable grounds for his belief, and act thereon in good faith in causing the arrest, he shall not be subjected to damages merely because the accused is not convicted.

not being within the reason of the rule, the court, as in every other case involving considerations of public policy, must itself determine the question as a matter of law, and not leave it to the arbitrament of a jury." The concluding sentence of this quotation is quoted in Rogers v. Olds, 117 Mich. 368, 75 N. W. 933.

And again in Hess v. Oregon German Baking Co. 31 Or. 503, 49 Pac. 803, the court said: "This rule is peculiar to this class of actions, but is one of long standing, and founded upon sound reason, good authority, and public policy. Actions to recover damages for malicious prosecution have never been favored in law, although they have been readily upheld when it is shown that the prosecution was instituted through actual malice, and without probable cause. Malice in such cases is always a question for the jury; but as the authority to institute a criminal prosecution, and the extent of such authority, are derived from the law, the law must judge as to what will constitute probable cause therefor. The welfare of society imperatively demands that those who violate the law shall be promptly and speedily punished; and, to accomplish that purpose, the rule has been firmly established that any citizen who has good reason to believe that the law has been violated may cause the arrest of the supposed offender; and if, in doing so, he acts in good faith, the law will protect him against an action for damages, although the accusation may in fact be unfounded. This rule is founded on grounds of public policy to encourage the exposure of crime and the punishment of criminals, and when, therefore, the act of a citizen in thus enforcing the law is challenged, the court must determine the question, when the facts are admitted or established, as to whether he had probable cause for so doing, and not leave it to the arbitrament of a jury."

Travis v. Smith, 1 Pa. St. 234, 44 Am. Dec. 125, likewise states that, "as the au