
    VANDER LINDEN, Respondent, v. OSTER, Appellant.
    (156 N. W. 911.)
    (File No. 3825.
    Opinion filed March 16, 1916.)
    1. Malicious Prosecution — Information Failing to State Purpose of Abduction — Statute.
    Where an information, upon which an action for malicious prosecution was based, charged that plaintiff abducted defendant’s daughter contrary to the form of the statute, etc., held, that while, under Civ. Code, Sec. 32, the abduction of a daughter from a father is a civil wrong, yet to abduct a female .is no crime unless it was done for a purpose mentioned in Pénal Code, Secs. 333, 334 and 335, making it criminal to abduct for the purpose of prostitution, or with intent to compel the victim by force, menace, or duress to marry any person, or to abduct any female under -15 years for the purpose of marriage, concubinage, or prostitution; and the information failed to charge the crime of abduction.
    3. Malicious Prosecution — Action for Abduction — Information Stating no Offense — Information as Evidence, Unavailing Objection to.
    In a suit for damages for malicious prosecution for abduction, where the plaintiff in .the suit alleged that defendant made complaint charging plaintiff with the “crime” of abduction, and for “abducting * * * the daughter of defendant,” held, that. defendant’s objection to ,the. information as evidence on the ground that it did not state an offense under the statute, was unavailing; since one who maliciously and without probable cause’files what purports to be .a'criminal information, but ' which fails to state facts constituting1 a criminal offense, cannot ■urge the defect in such information .as a defense to an action for malicious prosecution based thereon.
    3. Malicious Prosecution — Abduction—Malice, from Probable Cause —Ignorance of Insufficiency of Information — Probable Cause to Believe Statutory Crime Committed — Inference! for Jury.
    Evidence in a suit for malicious prosecution held, sufficient to afford jury an opportunity to..infer malice from want of probable, cause; no evidence appearing that defendant knew that the charge in the information did not constitute a criminal offense, while it tended to> show that he had- probable cause for believing plaintiff had abducted his daughter, though not that defendant believed plaintiff .guilty of the elements constituting statutory crime- and there being no direct evidence of actual malice.
    
      4. Malicious Prosecution — Damages for Abduction — Information Stating no Crime — Erroneous Instruction as to Information.
    Where, in a suit for malicious prosecution for abduction, the trial court admitted in evidence an information which, although charged in ’ the damage suit as alleging the crime of abduction, was insufficient' to charge such crime, in that it failed to allege that the abduction was for any of the purposes mentioned in Penal Code, Secs. 33.3-335, relating to abduction for purposes of prostitution, forcible, marriage, etc., and the trial court read to the jury said sections 334 and 335 for the purpose of explaining to them “what is commonly understood by the crime of abduction,” and then instructed that such information substantially charged such crime, held, such instruction was erroneous, in that, in assuming that the allegation that defendant’s complaint charged plaintiff with the crime of aibdiuction had been proven, it in. effect took from the jury the question of probable cause.
    5. Malicious Prosecution — Malice and Want of Probable Cause, Necessity of Concurrence of.
    There can be no malicious prosecution, and no person can be held liable therefor, unless there be both malice and want of probable' cause; and this, whether the acts charged by him constitute a criminal offense or not; and it must appear that the charge substantially made wás not only made maliciously, but was without probable cause 'for believing the acts charged to be true.
    6. Malicious Prosecution — Abduction—Insufficient Information— Probable Cause to Believe Guilty of Act Charged, or of Criminal Abduction?- — Different Conclusions on Undisputed Evidence — Effect as to Legal Inference of Probable Cause.
    In a suit for- malicious prosecution for abduction, based on defendant’s insufficient information in evidence, that plaintiff abducted his daughter “contrary to the statute,” but not charging that the-, abduction was for any purpose mentioned in Penal Code, Secs. 333-335, relating to abduction for purposes of prostitution, forcible marriage, etc., held,' that the question of probable cause presented to court and jury under the evidence was, whether defendant had -probable cause to believe plaintiff guilty of the act actually charged- in the information, and not whether he believed him guilty of the crime of abduction; and, ,the evidence upon the former question being undisputed, yet such that reasonable men “might arrive at different conclusions on said question of -probable cause, the ordinary rule that question of probable cause is one for the court is not -applicable, but it was still -a question of fact to be left to the jury.
    7. Malicious Prosecution — Malicious Charge Without Probable Cause — Non-criminal Charge, Materiality as Effecting Damages.
    ■One charging another maliciously and without probable cause, intending to cause the arrest and criminal prosecution of such other person, is answerable for all damages naturally flowing from the malicious act, including exemplary damages; and the fact that the acts charged did not constitute a criminal offense is then material only as affecting the amount of actual damages suffered by the injured party.
    8. Malicious Prosecution — Action—Instruction—Inference of Malice —Assumption of no Probable Cause — Error.
    An instruction, in a suit for malicious prosecution, that the jury could infer malice from want of probable cause, and that defendant had no probable cause, was erroneous, in that it left it possible for the jury to find malice without considering facts from which they might have found probable cause.
    O. Appeals — Error—Malicious Prosecution — Abduction—Insufficient Evidence — Instruction Assuming Information Sufficient — Presumption as to Elements of Damages Considered by Jury— Statute.
    In a suit for malicious prosecution, based upon an information which, although alleged ,to charge plaintiff with the crime o-f abduction, was insufficient to charge such crime because not charging the abduction to have been done for any purpose mentioned in Penal Code,' Secs. 333-335, relating to abduction for purposes of prostitution, forcible marriage, etc., held, that an instruction .that the information “substantially charged” plaintiff with “the crime of abduction,” in connection with the submission to the consideration of the jury, as elements of damages, personal mortification, mental suffering, anxiety of mind, ignominy and disgrace, raised tlie presumption that all these elements were considered by the jury in the light of said instruction, and such instruction was prejudicial error.
    10. Malicious Prosecution — Malice and Want of Probable Cause-Insufficient Information, Consideration of by Jury, When— Instruction.
    In such an action, if the jury found that defendant’s ■ charge was malicious and without probable cause, and was understood by the public .to impute that plaintiff was guilty of a crime, it should have been instructed to consider the actual facts of the case, and to draw therefrom its own conclusions; and for the purpose of determining the amount of damages, the fact that the information did no.t charge a criminal act is to be considered.
    11. New Trial — Malicious Prosecution — Abduction, Excessive Damages — Sufficiency of Evidence — Passion and Prejudice.
    In a suit for malicious prosecution and abduction, based upon defendant’s insufficient information alleged to charge plaintiff with the crime of abduction, held, that, in view of the prior conduct of. plaintiff, the nature and duration of the restraint placed upon him, the fact that he was discharged before his arrest had become known to the public, and to other facts in evidence, a verdict for $3,000 actual damages could be explained only on the hypothesis that i.t was the result of passion and prejudice.
    Smith, J., and Gates. J., dissenting in part.
    Appeal from Circuit Court, Davison County. Hon. Frank B. Smith, Judge.
    Action, by G. Vander Linden, against Anton Oster, for damages for malicious prosecution,. Fuom a judgment for plaintiff, and from an order denying a new trial, defendant appeals.
    Judgment .and order reversed.
    
      A. B. Hitchcock, aiid H. A. Rodee, for Appellant.
    
      Spangler & Haney, for Respondent.
    ■ (i) To point one of the opinion, Appellant cited: Century Dictionary: International Dictionary; 26 Cyc. 10, and cases cited.
    Respondent cited: 2 Cream of Law, Sec. 221; Laws 1913, page 335.
    (6) To point ’six of the opinion, Respondent cited: Baldwin v. Steam Laundry Co. 122 N. W. 460 and cases cited; Birdsa-11 v. Smith 122 N. W. 626; Neys v. Taylor 12 S'. D. 488; Leith v. Pope W. Bi. 1327-1329.
    
      (7) To point seven of the opinion, Appellant cited: Krause v. Speigel, 15 L. R. A. 707, Cal.; Bennett v. Black, 1 Stew. 494; Newman v. Dhwis, 58 Iowa, 447; Hahn v. Schmidt, 64, Cal. 284; Leigh v. Webb, 3 Esp. 164, 12 Cyc. 299.
    (8) To point eight of the opinion, Appellant cited-: Code Crinx Prraic. Sec. 92.
    (n) To point eleven of the opinion, Appellant citad: Bell v. Morse, (Kan.) 29 Pac. 1086; Billingsley v. Mass. (Wis.) 67 N. W. 49; Phelps v. 'Cogswell, 70 Cal. 201, 11 Pac. 628; Davis v. Seeley, (Iowa) 60 N. W. 183; Wheeler & Wilson Mfg. Co. v. Bar-ret, (Illinois) 50 N. E. 325; Murry v. Leonard, 11 S. D. 23.
    Respondent cited: '-S'tewant v. Cole, 46 Al-a. 646; Kindred v. Sti-tt, 51 Ill. 401; Chapman v. Dodd, 10 Minn. 350: Code Civ. Proc., Sec. 301; Davis v. Holy Terror Mining Co., 20 S. D. 399; Hiatt v. Kinkaid, 28 Neib. 721, 45 N. W. 336; Chapman v. Dodd, 10 Minn. 350.
   WHITING, J.

Judgment for damages for malicious prosecution. Appeal from 'such judgment, and from an) order denying a -new trial-.

The alleged malicious prosecution was based upon a writing which, we will hereinafter term am “information” to distinguish .s'ame from the “complaint” in; the present action. Defendant questions the sufficiency of such, information as a basis for the present action. He -contendsi that such information did not state any offense under the laws of this state, and that, in order for it “to serve as ai basis for the action of malicious prosecution, the original criminal (prosecution must have -been upon a sufficient affidavit, complaint, information, or indictment.” The information charged that, at a certain time -and place, the plaintiff in the present action, “did abduct the said Anton Osier’s daughter * * * Katie Oster, contrary to; -the form- of the statute in such case made ,and provided, and against- the peace 'and dignity of the state of South Dakota, * * * -and asks that the said’ G. Vander Linden may be arrested ,and dealt with according to law.” To abduct the daughter from the father is a civil wrong just as would be the abduction of a son from a father, or the father from a child. Section) 32, C. C. To abduct a female is- not crime under the laws of this state, unless, 'among other prescribed conditions, the abduction isi 'for some one or more of several purposes .mentioned in sections 333, 334, and' 335, Pen. C. The information1 in question comes as far from alleging- a criminal offense as would an information which charged one with breaking - into the dwelling house of another without charging that such breaking was with some unlawful intent. A person reading or hearing of- this charge might imagine such abduction to be for purposes of prostitution, thus making it criminal under section 334, supra; or with intent to compel the victim by force, menace, or duress, to marry some party, thus making .it criminal under section 333, supra; or might even draw upon his imagination to the extent of .seeing a case of abduction of a girl under 15 years of age, abducted from her parent or guardian for purpose of marriage, concubinage, or prostitution, thus making it criminal under section 335, supra; just as one might, upon hearing that one was accused of breaking into another’s house, imagine that 'it was done with intent to rape a female • residing therein, thus making burglary out of such ¡breaking. Suppose this information had .alleged that plaintiff did abduct “John Oster contrary to the form-,” etc. It would have come just( as near alleging a criminal offense as it .did worded as it was.; it might not have opened up quite as broad a -field for the play, of the imagination.

Plaintiff alleged that defendant “made complaint-charging the plaintiff with the crime of abduction, -and charging plaintiff with abducting one Katie Oster, the daughter of defendant.” The information was offered! and, over defendant’s objection, received in evidence to .prove the above allegation. The ground of defendant’s objection to the receipt of the information in evidences was that it did: not state -any offense under the laws of this state. The overwhelming weight of authority -supports the proposition. that one who maliciously and without probable cause files what purports to be a criminal information, but which fails to state facts constituting a criminal offense, cannot urge 'the defect in such information as a defense to an action for malicious prosecution based thereon. Minneapolis T. M. Co. v. Regier, 51 Neb. 402, 70 N. W. 934; Dennis v. Ryan, 65 N. Y. 385, 22 Am. Rep. 635; Strehlow v. Pettit, 96 Wis. 22, 71 N. W. 102; Dueck v. Heisler, 87 Wis. 644, 58 N. W. 1101; Potter v. Gjertsen, 37 Minn. 386, 34 N. W. 746: The objection being insufficient, -there was no -er-roír'-- in receiving the information in evidence, even though it was -insufficient to prove that defendant “made -complaint charging the-plaintiff w-ith the crime of abduction.”

Evidence was received) showing that defendant signed the information knowing that a warrant would issue if he signed it, and expecting that plaintiff would be arrested thereon and showing that he was so arrested. There was 'no evidence tending to prove that defendant knew that the facts -charged in -said information did not constitute a criminal offense.' There'was evidence from -which the jury may well have found that defendant had probable Cause for believing thiat -plaintiff had abducted his- daughter; but there was no- evidence tending to- show that it bad ever entered the -defendant’s mind- that plaintiff had abducted h-is -daughter -for any -one Of the immoral purposes above referred-to-, or tending to show that there existed1 any probable cause for -defendant to believe plaintiff guilty of all th-e necessary elements -constituting a criminal offense under any on-e of said sections. There was no -direct evidence of actual malice on the p-art of -defendant; at the best there was -hut -an opportunity for the jury to infer malice from- want of probable cause if such want of probable cause was found by it to- exist.

The evidence having been properly received, as against any -objections- interposed, we must consider this case upon suda evidence and- need not consider th-e sufficiency o>r insufficiency of the pleadings. The trial court not only admitted the information in evidence as proof of the s-ai-d allegation contained in the complaint, hut it read to the jury sections' 334 and 335, supra, for the -expressed purpose -of explaining to- them1 “what is commonly understood by the crime of .abduction,” and it then instructed the jury that such information substantially charged such- cribae. Such .instruction'-was clea-rly erroneous. The tidal court assumed, for all purposes of -the trial, that the allegation — that 'defendant “made complaint charging the plaintiff with the -crime of abduction”— had been 'proven. Acting from such .premise, the court took from the jury the question, of .probable -cause -and held, as- a matter of law, that -defendant had no- ¡probable cause to prefer such criminal charge.-"' This ruling would- have' been correct if tlie premise had been correct. -

-But there' can he no- malicious 'prosecution unless there be both malice and want of probable cause. What question of probable cause was presented to the court and jury under the evidence received? Wias it the question of whether defendant had probable cause to believe plaintiff guilty of criminal abduction —a charge he never made and one which he clearly did not have in mind; or was it the question of whether 'defendant had probable cause to believe plaintiff guilty of the act actually charged? We believe that, under both reason and authority, it was the latter. While the evidence upon suoh latter question was undisputed, and while, as a general rule, where the evidence is thus undisputed, the question of. probable cause is ornei of law for the court (Neys v. Taylor, 12 S. D. 488, 81 N. W. 901), yet we are of the opinion that, under the undisputed facts of this case, two equally reasonable men might arrive at different conclusions upon the question of whether defendant had .probable cause to' make the charge he 'did make, and this owing foi the different inferences that might properly be drawn from1 such facts. That being true, the ordinary rule was not applicable, and the question of probable cause was still a question of fact that' should have been left to the jury. Heyne v. Blair, 62 N. Y. 19. It is urged that it is inconsistent and illogical to, hold that the fact that the: information did not charge a criminal offense cannot he urged in defense of the action for malicious prosecution, and at the same time hold that the question of probable cause must be restricted tO' the accusations actually made by defendant. Were it either inconsistent or illogical to1 so: hold it certainly would -not be so monstrous, so> fraught with, injustice, asi to hold that, if A., acting without malice and having probable cause to believe B. has abducted C., and fully believing that the mere: abducting of C. was a criminal' offense (whether C. be male or female and regardless of the purpose of the abduction-, makes -a charge that B. has abducted C. and .procures his arrest, he can- be held in damages f-or malicious ■prosecution; and1 this because he had no' probable cause to believe B. had made -such abduction for some forbidden purpose not dreamed of by A. and not charged! against B.

• This case must be distinguished! from one where it is proven or conceded that a party has maliciously and without probable cause charged! facts not constituting :a criminal offense. Such was the case of Dennis- v. Ryan, supra. This- case must be disfin-guished- from- one where the party making -a charge not constituting a crime knew that it did not constitute a crime and' yet made it for the purpose of causing another’s arrest. This case must be .distinguished from a -case where -one charges the crime according to its -statutory name and then sets forth the alleged facts -constituting such -crime, and such facts -are insufficient to -constitute -any criminal offense. This case must be distinguished from a case where the -allegations of the information substantially charge some criminal offense.. Let -us suppose that what was charged iby defendant -did actually -constitute -a -crime, that he had probable cause for -believing -the truth of su-ch charge or, at least, was not moved- -by malice- in making same. He -coul-d not be h-olden no matter how mistaken he was. HioW then can he be liable if he acted without malice and with probable cause simply because if he had included in his charge some other allegation, the -offense charged would h-av-e been more heinous, and he would in -making such -other allegation have acted without probable cause? Suppose A., -believing that the mere breaking into- the house -of another constitutes a crime -and1 this regardless of .intent, an-cl having absolute knowledge that B. has -broken into his house, files a complaint so charging (but not charging-that -the breaking was- with intent to commit a crime) and B. is arrested. Can A. be liable in -damages for malicious prosecution any more than -he would h-av-e been if he had actually charged him with burglary and have been albl-e to show -probable cause for such -charge? The answer is obvious. The question must alway-s -be: Did the defendant -have .probable caus-e for -believing the particular charge to- -be true? Of -course, ini the case before us, -th-e plaintiff m-ay be injured nearly -or quite as much- -as he would have- been if defendant had charged him with- all the elements- o-f -criminal abduction-, but it is not the- amount of injury or the seriousness of the charges made that determines the fact of liability -as distinguished from amount of -liability. If the- ju-ry, under proper instructions, have fo-un-dl want of probable cause for making the charge preferred, then- and) -only then, under any- authorities where this exact question -was presentad, can defendant be hel-d liable; under many authorities he wio-uld .mot even then- be liable.

It is urged that ou-r views are in conflict with the majority opinion in Dennis v. Ryan, -supra, which- all must -concede is -a leading authority -on the question of liability where the facts ■charged) do not constitute a crime. A careful' reading of such majority opinion) will -reveal that it -squarely and absolutely sustains our position-. As stated by the commissioner whio wrote such opinion, the italicizing being ours:

“The crime charged was forgery; it was alleged and stated in the indictment to' consist of an erasure of an indorsement of payment upon a bond-. ' This, it is insisted on -the part of the defendant, did- mot •'constitute the crime of forgery, and I- am inclined to think it did not; -and1 -because, as the defendant insists, it did' not, he claims that however false his accusation. was, or with what evil or malicious intent he instigated, the prosecution, and however much it may have vexed and- injured the plaintiff, he is not liable in this action, and the rea-so-n assigned in substance is that.it was through- the -misjudgment of the district attorney and the grand jury -that the indictment was found, a warrant issued, the plaintiff arrested and put upon his defense.”

Let us now note what the jurist then- said1 -and see how it agrees with our views .above expressed:

“I -do not doubt that if the defendant’s statement to the district attorney cmd the grand jur'y had been true, and that an indictment had been found and prosecuted u-pon his truthful statement, that this action could not have been maintained; in such case the ' defendant 'mould, not have been guilty of any wrong.”

In other words, where the insufficient 'allegations are true there can be no- liability 'simply because sufficient allegations would not have been true. Note alsoi the words of Lord- Campbell in Par-lie v. Daubs’-, 30 B. L. & Eq. 1x5, as quoted in Dennis v. Ryan, supra: '

“I think al-1- -that is necessary is that the defendant should falsely and maliciously cause the act to be done; and he did cause it, because, if he had1 not presented his petition and made a falsa affidavit, the judge could not and would not have made the -adjudication-. * * * There is- -no- doubt that if a person truly states to a judge, and ■ the judge threupon does an act which the law will not justify, the pai'ty who1 made the statement is not liable, because, in- -that -case, -the grievance complained1 of arises not- from the false -statement :of the party but from a mistake of the judge. It would be. strange if, where a court is put in motion by a false and • malicious' statement, it should depend upon a nice question of law- whether there was a remedy or not.”

From an examination of numerous cases we feel justified in stating that there is no case, where the - facts appear in the opinion, ini which any court has held! a -partly -liable in an action for malicious prosecution, for making charges insufficient to^ constitute -a criminal offense, unless it appeared that the actual charges made -were made maliciously and -without probable cause.

We therefore hold, upon both ¡reason and authority, the laiw toi be: Whenever a person makes a -charge against -another person for the purpose and with the intent of causing the arrest and criminal prosecution of stjeh other and the charge is made maliciously and without probable cause, the party making such Charge cannot defend an action for malicious prosecution upon the ground that the acts charged) did not .constitute a criminal offense. In .such case, the party making the charge is answerable for all damages naturally flowing front the malicious act, and may also be punished in exemplary damages; the fact that the acts charged do not constitute a criminal offense is then material ■only in so far as such- fact may affect the amount of actual damages suffered by the injured party. But before any person can be held liable in an action for malicious prosecution, whether the acts, charged by him constituted a criminal offense or not, it must appear that the charge actually or at least substantially made by 'him was not only made maliciously, but was made without prohable cause for believing the acts charged to be time.

By the court’s instructions there were left to the jury but two questions, ma-lice and 'damages. The jurors were instructed that they could infer malice from' the want of probable cause, and were advised that defendant had no probable cause for making the charge. Instructing the .-jurors that they might infer malice from want of probable .cause, and then instructing them that want of probable cause was proven, left it possible for the jury to find malice without any consideration: of the facts from which, the jurors might have found' probable cause.

Among the elements of damages submitted to. the consideration of the jury were personal mortification, mental suffering, anxiety of mind, ignominy, disgrace. We must presume that all of; these elements were considered by the jury in the light of the instruction that the information “substantially charged” plaintiff with “the1 crime of abduction,” and in the light of the provisions of sections 334, 335, Pen. Code; in other words, we must presume that these several elements of damage were considered by the jury and considered! as flowing- or resulting from, a prosecution of plaintiff upon an information, charging him with some one of the heinous offenses' designated in such sections' of our Code. The jury was ini effect directed, in case it found the prosecution malicious, to allow damages for the mortification, mental suffering, anxiety of mind, ignominy, and disgrace suffered iby plaintiff, and to base such allowance upon the premise that he ¡had been charged with a most heinous offense instead of a •mere civil wrong. That this was prejudicial error is perfectly apparent.

If the jury found, in the light of all the evidence, that defendant’s charge was malicious and without probable cause, and that the public understood such charge to impute' that plaintiff was guilty of a heinous offense, the jury had a right to' fix the actual damages accordingly; but it was for the jury and not the ■court to determine in -what manner and to* what amount plaintiff was damaged. It would be just as reasonable, in case A. charged B. with breaking into his (A.’s) house, to so instruct a jury, in an action for malicious prosecution brought by B. against A., that the: jury would be bound to measure B.’s damage on the theory that A. had charged B. with intent to commit a rape on the person of A’s daughter. The jury should have been so instructed that it would have been left to consider the actual fact' of the case and ¡been at liberty to> draw its own inferences and conclusions. Bor the purpose of determining the amount of damages, the fact that the informations did not charge a criminal complaint is to be considered. Shaul v. Brown, 28 Iowa, 37. 4 Am. Rep. 151; Finn v. Frink, 84 Me. 264, 24 Atl. 851, 30 Am. St. Rep. 348. It is for the jury to' determine what damages actually -flowed from what actually occurred.

We have gone thus fully into the questions discussed above to the end1 that upon a new trial the action may be tried out upon the proper theory. We would feel bound to grant a new trial for reasons other than and in addition to, any of those herein-before mentioned.

One of the grounds urged on the motion' for new trial _wa©:

“Excessive damages awarded -by the: jury, appearing to have been given under the influence of passion or prejudice.”

Even though there had been no error committed upon the trial of this case — even though, the evidence had fully supported the instructions upon which .it was submitted, we would have no hesitancy in declaring that the motion for new trial should have been sustained upon the above ground. When all the facts of this: case are taken into .consideration — the prior conduct of plaintiff, the nature and duration of the restraint placed upon him, the fact that he was discharged before his arrest had become known to the public, as well as many other facts that might be noted but a review of which could, at this time, serve no, useful purpose — the verdict of $3,000 actual damages can he explained upon no hypothesis', except that it was the result of passion and prejudice, and not the calm, and deliberate conclusion of 12 men.

The judgment and order appealed from are reversed.

SMITH, J.

(dissenting in part). I am: not disposed to dissent from the holding of my Associates that a new trial should be awarded on the ground of excessive damages. But I cannot .concur in the views announced in 'Other portions of the opinion, and therefore deem it my duty to state somewhat fully the reasons ■for such dissent.

At the beginning the majority opinion elaborates a proposition which neither appellant nor respondent has controverted, viz.: That the information filed before the magistrate does not allege facts constituting the crime of abduction, in that it fails ■to allege the specific intent required by some one of the several sections of the 'Criminal Code referred to. Without stating even the substance of the evidence touching that phase of the case, the- majority opinion asserts that there was evidence from which .the jury might have found that defendant bad probable cause for believing plaintiff “had abducted his. daughter.” A most careful examination of the record will demonstrate that it contains not a word of evidence even tending to show that defendant at the ■time be swore- to the complaint in justice-court, or at -any other time ever had any grounds whatever 'for believing that plaintiff had abducted his daughter, either with criminal intent, or under circumstances which would constitute even a civil injury to defendant’ ‘s- rights as a parent. In the first place the defendant himself testified that the daughter -was 22 years of age at the-time of the alleged abduction; .that the day she left home he and his daughter had' trouble over her- wearing a costume to' which h'e objected, and that he told her “she had to take that waist off or she couldn’t go to the dance,” and that she bad “to shoiw what clothes she wears or she can’t go.” His own evidence is that the daughter and Miss Roberts-, a teacher who hoarded at their house, left home that night on foot, -arid went .to a neighbor’s (Mr. Heeht’s), and asked his boy to take them over to the town of Dimock, where-a‘Thanksgiving dance was on, and- that he drove them there; that Miss Roberts came home the next day and told the mother that Katie said she “-wouldn’t come back for the best half section of land! in Davison county,” but wouldn’t tell her where Katie was. Defendant also testified that after Katie left home that time, he never bad any control over her; that “she comes and goes when she wants to-.”

Upon these facts, and there are no others material to that iss-ue, the statement in the majority opinion to -my mind i-s- clearly erroneous, whether the word “abduct” be considered as intending a criminal charge or merely -a civil injury. Defendant’s own -evidence shows that the daughter was of adult age and had the legal right to leave his home whenever, and to. go- wherever, she ohose. And even if it were conceded -that plaintiff induced her to defy her father’s assumed, authority and leave his home against hisl will, such -act would not -amount either to the crime, or to the civil injury known as- “abduction.” On the contrary, the evidence! shows beyond the possibility of dispute that the -daughter rebelled ■when the father denied her right to- attire herself' as she ohose, and that she willfully and voluntarily left his home and went to a neighbor’s arid! induced him to carry her and the teacher to’ D'imock -where the Thanksgiving dance was held. There is not a syllable of evidence in the record even tending to- show that plaintiff had -anything to dto with this action on her part or was the cause of or responsible for it. The trial court -therefore w-as right in instructing the jury as it cLidi that:

“There is no legal nor probable right nor reasonable cause appearing from the evidence■ in this case, which- would authorize and warrant him (defendant) in filing 'this information in the justice court charging the plaintiff with -abduction-, arid no legal cause appearing from:-the evidence for his -arrest under it. * * *”

In this 'connection- the court instructed the jury- as to- proof of malice:

“The question I will submit -to the jury however, is -whether or not the motive -on the -part of the defendant in instituting and instigating this prosecution was malicious. * * * Now the making use of prosecution, not for the ostensible purpose for which it is taken -out or instituted, but some other purpose for whi-ch it is an illegal or unlawful -means, may be a ¡basis if the jury see fit, for inferring malice. And in this case, if it was the purpose of the-defendant in -instituting these criminal -proceeding’s against the palin-tiff to compel the plaintiff to disclose the whereabouts of his daughter, such purpose was unlawful, and constituted no justification f-o-r instituting the criminal proceedings. In other words, he -had no right to resort to unlawful criminal proceedings -for the purpose of obtaining .information which he wanted to get. * * * It is necessary that there should have been malice, either legal or actual, in the prosecution of such an -action. The jury, however, are permitted.and (they have the power and may, if in their judgment it -should be done, infer malice from want of probable cause. That -is, -they may infer from the fact that the suit was brought and that the prosecution was -unfounded and illegal in law, may infer that it was brought maliciously for the purpose of injury, but that is a conclusion not of law but of fact that you may draw, or not draw, as you may believe you -ought to under all the evidence in the case. Legal malice is made -out by showing that the proceeding was instituted for an improper or wrongful motive, and it is not essential that an actual malevolent or corrupt design be shown.”

The majority opinion- says.:.

“The trial court assumed for all purposes of the trial that the allegation — that defendant. 'made complaint charging the plaintiff with th-e cri-m0- -of abduction’ — had been proven * * *” and -that ‘‘.this ¡rule would' 'have been correct if the premise had been correct.”

The instruction actually given 'the jury was as follows:

“It ie undisputed in this case that this defendant filed this information in justice court, and' proceedings for abduction- were instigated! and instituted against the plaintiff, and he was arrested upon the warrant issued by this justice, and so far as this case is concerned the information that was filed in that case substantially charges him with the -crime of abduction.”

I assert that the overwhelming -weight of authority supports the proposition that one who falsely, maliciously, and without probable cau-se files or causes to be filed, and causes an- arrest and .prosecution upon, what purports to> be a criminal information, but which, fails- to state facts constituting a criminal offense, cannot urge defects in such information as a defense to. an action for. malicious prosecution- thereon. The majority opinion seems to assume that the liability for malicious prosecution depends upon the sufficiency of the allegations of the complaint alone, and ignores what was done under the complaint, viz.: The issuance of a criminal warrant, and the -arrest of the plaintiff as for a •crime. The instruction: as given properly covered the whole evidence. The reasoning of the majority opinion is that there is nothing to show that defendant intended to charge plaintiff with anything -except wh-at -he -swore ¡to. -in the complaint, viz.: The civil -injury called “abduction,” and therefore the trial court erred in assuming' for -all purposes of the trial that -the allegation that -defendant “made complaint charging the- plaintiff with the crime of abduction” had! -been, proven. This conclusion, might be -correct -if the complaint filed were the only evidence to- show that defendant intended! .to -charge -plaintiff with abduction as -a crime and not as a civil injury. But the undisputed' evidence taken as a whole conclusively shows that the defendant intended: to charge '■plaintiff with the crime -o-f abduction, and therefore the trial court did not' err --in: assuming .and charging that for the purposes of the trial- the defendant -ha-d “made c-omplaint charging the ¡plaintiff with the crime of abdlucition.”

The majority opinion insists ¡that the case at bar be distinguished from: D-ennis v. Ryan. That case holds that when a complainant tnuthfutty states -all facts to a prosecuting officer, who 'himself mistakenly assumes that'-’such facts constitute'a crime, 'the -complainant should' not' -be ■ held responsible far maliciau-s prosecution. The indictment in that casé charged an erasure of an indorsement of payment on a bond, -to be criminal forgery; the court held it was not, but "says: ’ ’■

“That the complaint - was false, and maliciously made, ’is established by the 'verdict of the jury, and now that he has put ■in motion the officers of the law, and by his false and malicious statement it does nbt’ either on principle o-r authority-, lay :with him to say. by' way of -defense that the injury resulting- 'from' the wrong committed by him would not' have been consummated but for'the .innocent mistake- of those imposed upon by him.”

The court 'thus squarely held that the test of liability did’-not He in the insufficiency of the indictment to- state facts constituting a crime, but in' the 'false and-malicious- charge-made''without probable cau's-e,' td' the prosecuting officer. -

That the defendant in the case at- bar intended to charge plaintiff with criminal abduction' in some form' and to- cause his arrest as for a crime, is absolutely clear. The undisputed evidence of the justice is that -defendant— ' ’ ’■

“told a little, before the -papers were- drawn-up, abo-ut this transaction as -he understood it. He said -the -girl wa-s gone and the boy took her, and he wanted- the boy arrested. * *' * He wanted them papers and) he wanted them right -off.”

Defendant’s' son testified that he heard his father tell the justice to -bind plaintiff Over to the circuit 'court “because- he wouldn’t tell where the girl was,” and!- that the justice said “he didn’t know "how1 to fix it in order to- find out the evidence — what I mean to find out where- Katie' was.” Further than-" -this, ” defendant himself ''testified! that lie went to the justice office-to’ge't the warrant, and -in stating-'his conversation' With the justice's-aid-:

“I told him my daughter went away, and if th-ere was any way to get the young roan to testify where he left the girl. Fié said,, T cáh-fine him ori’ your statement.’ I Said, T don’t want him fined, I' -want him to testify'where the girl "is.’' Finally-he made out a blank there.”- '■ " . .-*

That'defendant falsely and !without" probable' 'cause”and'*fnr a wrongful and! illégal purpose, intended'by and-did charge pl-affi-tiff with'bbe crime of “abduction,” and did1 cause his arrest upon a criminal warrant, appears beyond’ dispute. The defendant’s own testimony clearly shows, that he filed the complaint without probable cause, and caused the -arrest on a criminal warrant, for the purpose of compelling’ plaintiff “t-o> testify where- the- girl was.” That the falsity of the charge, the want of probable cause, and the -defendant’s illegal and wrongful purpose in causing the arrest, were sufficient under the instruction of the court -to sustain a finding of malice, is -too clear to' require discussion. The charge of abduction in any sense or form was absolutely false. It was made without probable cause and for a wrongful- and illegal purpose, -and a finding of malice by the jury s-hould not be disturbed.

T-h-e majority opinion says:

“Instructing the jurors that they might infer malice from want o-f probable cause, and then instructing them that want of probable cause was -proven-, left it possible for the jury -to find m-alice without any -oonsideiration of the facts from which the jurors might ih-a-ve found probable cause.”

If -the instruction given had 'been as assumed in- this statement, there might -be some ground' for guessing that it might have -been prejudicial because- it was passible for the jury to find malice without considering -other facts in evidence. But the trial court did- not so instruct ¡t-h-e jury. It did instruct them that want of probable cause was -a conclusion of fact from which they might -o-r might not -draw t-he inference of malice, and that:

“It is for you, gentlemen of the jury, toi say, assuming that (want of -probable -cause) to- be -true, whether from that, and all the facts and circumstances surrounding the entire transaction, the -defendlant in this case was guilty -of malice, as I -have defined it to yo-u, in instituting this proceeding.”

I think nothing further need be said o-n this po-int. However involved in its logic, the majority opinion -certainly hold's nothing less than that insufficiency of the complaint to- charge a crime may amount to- at least a- partial -defense as to- damages. But the reasoning of the decisions, under the great weight of authority, is that ¡the actual damages resulting from the disgrace, vexation, and expense attending a 'prosecution “as for a crime,” on an information charging wh-at technically would amount only to -a civil injury, are the same as though a crime had been sufficiently charged. The courts hold that the damages resulting from a false and malicious charge and the vexation, disgrace, and expense of a prosecution are not measured by the sufficiency 'or insufficiency of the complaint upon which- the prosecution is based. For whether the indictment or information he good or bad, the plaintiff is equally subjected to the vexation and disgrace of it, and is put to- the same expense in defending himself against- it. The following cases, and many others which might be cited, illustrate the views and reasoning of the .courts approving the majority rule. Shaul v. Brown, 28 Iowa, 37, 4 Am. Rep. 151; Stancliff v. Palmeter, 18 Ind. 321; Pippet v. Hearn, 7 E. C. L. 346; Mask v. Raws, 57 Miss. 270; Streight v. Bell, 37 Ind. 550; Schattgen v. Holmback, 149 Ill. 646, 36 N. E. 969; Stocking v. Howard, 73 Mo. 25; Barton v. Kavanaugh, 12 La. Ann. 332; Mpls. Threshing Machine Co. v. Regier, 51 Neb. 402, 70 N. W. 934; Anderson v. Nelson, 25 Ont. 91; Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101; Finn v. Frink, 84 Me. 261, 24 Atl. 851, 30 Am. St. Rep. 348; Potter v. Gjertsen, 37 Minn. 386, 34 N. W. 746; Johnson v. Daws, 5 Cranch (C. C.) 283, Fed. Cas. No. 7,382.

In conclusion I will only s>ay -that I shall await with much interest and some curiosity a successful effort of the trial court to apply the reasoning and logic of the majority opinion upon the new trial.

GATES, J.

I concur in the v-i-ews expressed by SMITH, J. It seems to me that the gist of the matter is- this: The criminal complaint, while insufficient to- charge a orime under -the rules of criminal law -and procedure, did charge a crime for the purpose of civil liability in-an action for malicious prosecution. The illustration of housebreaking in the majority opinion clearly shows the point. If “A.” -is charged in an information with “breaking into and. entering the dwelling house- of ‘B,” contrary to the form of the statute in such case made and provided,” but no charge is made that it was done with intent to- commit a crime therein, such information does not charge the offense of burglary for the purposes of a criminal action; but the crime of burglary is charged for the purposes of an action for damages for malicious prosecution.  