mitted, it is his duty to investigate the charge, and if he deems it a matter of sufficient importance, to demand the attention of the grand jury. It is also his duty to have the witnesses subpoenaed and brought before, that body, and he has the right to appear also, and assist in their examination. Neither he nor the grand jury are confined in their investigations to the witnesses named by the complainant, but they have the power to send for and examine any witnesses whom they have reason to believe can give any material evidence bearing on the question of the guilt of the accused. We will not, of course, be understood as holding that a party who maliciously makes a groundless charge to the district attorney, and thereby procures the finding of an indictment, is not answerable to the one injured by the proceeding. It would, however, be a very harsh rule, and one calculated to discourage entirely the making of complaints by private individuals, to hold that one who has acted on the advice of the district attorney, given upon a full and fair statement of all the material facts which he knew, or which he had reasonable ground to believe, existed at the time, was not protected by the advice of the attorney, simply because he did not, before making the complaint, learn of other material facts of the existence of which he might have learned by reasonable inquiry; yet that is the doctrine of the instruction. The instruction seems to have the support of Hilliard in his work on Torts, (see volume 1, p. 506,) and Waite in his work on Actions and Defenses. (see volume 4, p. 335.) The doctrine of the text is supported, however, by but few of the cases cited in the notes in support of it, and we do not believe it is sound.
The judgment of the district court will be reversed, and the cause remanded.
NOTE.
1. Malicious Prosecution—Probable Cause. The existence of probable cause is a mixed question of law and fact. It is for the jury to determine what facts are proved, and for the court to say whether or not they amount to probable cause. Burton v. St. Paul, M. &. M. R. Co., (Minn.) 22 N. W. Rep. 300; Johnson v. Miller, (Iowa.) 17 N. W. Rep. 31; S. C. 19 N. W. Rep. 310; Ross v. Langworthy, (Neb.) 14 N. W. Rep. 515; Castro v. De Uriarte, 16 Fed. Rep. 93; Geo v. Culver, (Or.) 6 Pac. Rep. 775; Sartwell v. Parker, (Mass.) 5 N. E. Rep. 807; but when the facts are undisputed, the courts should instruct the jury that there was or was not probable cause, Brewer v. Jacobs, 22. Fed. Rep. 217; Castro v. De Uriarte, 16 Fed. Rep. 93; Fulton v. Onesti, (Cal.) 6 Pac. Rep. 491; Parli. v. Reed, (Kan.) 2 Pac. Rep. 635; Sartwell v. Parker, (Mass) 5 N. E. Rep. 807.
As to how far a party will be protected by the advice of counsel, and what is essential to secure such protection, see Johnson v. Miller, (Iowa,) 19 N. W. Rep. 310; S. C. 17 N. W. Rep. 34; Porter v. Knight, (Iowa,) 19 N. W. Rep. 282; Whitmore v. Mellinger, (Iowa,) 18 N. W. Rep. 870; S. C. 14 N. W. Rep. 723, Smith v. Austin, (Mich.) 13 N. W. Rep. 593; Logan v. Maytag, (Iowa,) 10 N. W. Rep. 311; Sherburne v. Rodman, (Wis.) 8 N. W. Rep. 414; Emerson v. Cochran. (Pa.) 4 All. Rep. 498, and note; See, also, Walker v. Camp, (Iowa,) 27 N. W. Rep. 801, and note; S. C. 19 N. W. Rep. 802.
For a full discussion of the questions of malicious prosecution and probable cause, Magmer v. Renk, (Wis.) 27 N. W. Rep. 26, and note, 29; Emerson v. Cochran, (Pa.) 4 Atl. Rep. 498, and note, 500; Taylor v. Rice, 27 Fed. Rep. 261, and note, 207: Henp v. Parish, (Ind.) 3 N. E. Rep. 549, and note, 552; Krulevitz v. Eastern R. Co., (Mass.) 5 N. E. Rep. 500; Gonzales v. Cobliner, (Cal.) 8 Pac. Rep. 697, and note, 700.
2. As to the presumption of guilt created by the unexplained possession of personal property, see State v. Pennyman, (Iowa,) 26 N. W. Rep. 82; State v. Johnson, (Minn.) 21 N. W. Rep. 843; State v. Hopkins, (Iowa,) 21 N. W. Rep. 585; State v. Hollett, (Iowa,) 19 N. W. Rep. 206; State v. Tilton, (Iowa,) 18 N. W. Rep. 716; Johnson v. Miller, (Iowa,) 17 N. W. Rep. 34; S. C. 19 N. W. Rep. 31O; State v. Richart, (Iowa,) 10 N. W. Rep. 657; Ingalis v. State, (Wis.) 4 N. W. Rep. 785; Towle v. State, (Wis.) 2 N. W. Rep. 1133; State v. Snell, (Wis.) 1 N. W. Rep. 225; Wagner. v. State, (Ind.) 7 N. E. Rep. 896; Hoge v. People, (Ill.) 6 N. E. Rep. 796.
