plaintiff’s second interrogatory that defendants did not act in good faith, upon the advice of counsel, believing plaintiff to be guilty, will you now answer whether defendants fully and fairly stated to the prosecuting attorney all of the material facts for and against the theory of plaintiff’s guilt, which had come to their knowledge before the first indictment? Answer. Yes. Did the district attorney, after such statement, advise defendants that there was probable cause to believe the plaintiff guilty, and advise defendants that his case should be submitted to the grand jury? A. Yes. Did defendants go before such grand jury by reason of his advice, and in obedience to a subpoena, legally served upon them, and give their evidence, and the only evidence which they gave on that occasion? A. Yes.” It will be seen from these findings that, while the jury found that the defendants fully and fairly stated to the prosecuting attorney all of the material facts for and against the plaintiff, which had come to their knowledge, they did not believe the plaintiff guilty of the larceny. The contention is whether advice of counsel is a protection to one who commences a prosecution against another who is not guilty, and whom he does not believe to be guilty. It is good faith that excuses from wrongfully commencing or continuing the criminal prosecution. Certainly one cannot be said to act in good faith who causes the prosecution of another on a charge of which he does not believe him guilty. In Center v. Spring, 2 Iowa, 393, it is said, as the general expression of the rule, that if “the defendant misrepresents the facts to such counsel, if he does not act in good faith under the advice received, if he does not himself believe that there is cause for the prosecution or action, he will not be prosecuted.”
In Acton v. Coffman, 74 Iowa, 17, 36 N. W. Rep. 774, the court instructed that, if the defendant acted in good faith upon the opinion given by the attorney “that he believed himself that there was cause for the prosecution, then he is not liable.” In that case, as in this, the question was whether the facts thus found conclusively did seek the advice of counsel; that the attorney, with a full knowledge of the facts, advised that a suit was maintainable, and that the defendant acted on that advice in commencing the prosecution. In that case, as in this, the question was whether the facts thus found conclusively show that the general verdict is so inconsistent there with that it must be set aside. The court says: “It must be assumed that the jury followed the instructions above set out. Therefore they must have found that, although the plaintiff stated the facts to counsel, and acted on the advice of counsel in commencing the criminal action, yet, in doing so, he did not act in good faith, or that he himself did not believe there was probable cause for prosecution.” In that case as in this, the instruction was not excepted to, and constituted the law of the case. it is contended that the finding that the defendants did not act in good faith, upon the advice of counsel, believing the plaintiff guilty of the charge, is the finding of a mere inference or conclusion, and is overcome by the other findings. If it be the finding of a mere conclusion, it is sustained by the general verdict, and there is nothing in the other findings to negative it, as it is nowhere found, even by inference, that the defendants believed the plaintiff guilty.
4. Probable cause is defined to be reasonable ground of suspicion, supported by circumstances sufficiently strong; in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” It is a mixed question of fact and law. The sufficiency of the circumstances to constitute probable cause is a question of law for the court, and the evidence of the circumstances is for the determination of the jury. Center v. Spring, supra, and authorities therein cited. The facts found by the jury are, in substance, these: Four calves were stolen from the defendant Foreman on the night of June 3, 1874, in Jones county. In October following, Foreman found the calves in the possession of the defendant Potter, in Greene county. Potter claimed to have purchased the calves of the plaintiff, in Jones county on June 4, 1874. Foreman soon after communicated these facts to plaintiff, who conceded that he did sell the calves to Potter on or about June 4, 1874, and claimed that he had purchased them, while running on a common six or seven miles from Foreman’s place, of a stranger, who said his name was Smith, about 11 o’clock, on or about June 4th, to be delivered in a pasture six or seven miles away, where he afterwards found the calves, but did not find the stranger; that the plaintiff thereafter settled with Potter for the calves, and gave his note for the value thereof; and that plaintiff never gave any other explanation of his possession of the calves to the defendants prior to the commencement of the criminal prosecution. The further findings show that these facts were known to the defendants Foreman, Potter, and Fall at the time of the commencement of the prosecution, but were not known to the other defendants. There is a further finding that neither of the defendants had been informed of any mistake in the admission of plaintiff that he had had the stolen calves in his possession, and sold them to Potter, until after the commencement of the criminal proceedings, and that, at the time the proceedings were commenced, the defendants did believe the admission of plaintiff, that he did have the stolen calves in his possession, to be true. In instructing upon the question whether the defendants had probable cause for believing the plaintiff guilty, the court, following the suggestion made on the former appeal, (63 Iowa, 588, 17 N. W. Rep. 34,) grouped together in an instruction the facts which the evidence tended to prove, and directed the jury that, if the defendants discovered and believed that details of the purchase as claimed by him, were unreasonable, contradictory, and their knowledge, and believed by them, would, in law, constitute probable cause for a criminal prosecution. There is no direct finding as to whether there was
