
    Jacob G. Krehbiel, Appellant, v. W. L. Henkle, Appellee.
    1 Unlawful search: right of action. Every citizen is guaranteed by the constitution the security of his person and property against wrongful seizure or search, a violation of which right without reasonable ground gives the injured person a cause of action therefor.
    2 Malicious prosecution: malice: probable cause: evidence. In an action for maliciously suing out a search warrant, malice and want of probable cause must be shown to sustain a recovery of damages; and unless the evidence is so clear and undisputed that reasonable minds can not differ as to the conclusion, the issue is for the jury. Evidence held to show that the issuance of the warrant and the search were procured by malice and without cause.
    3 Same: wrongful search: right of action. Actual arrest or seizure of property are not essential to sustain an action for maliciously suing out a warrant directing the search of plaintiff’s premises, nor is it essential that he should have been directly charged with larceny; the wrong is done by unreasonably entering and searching his home under the charge that stolen property was there secreted, thus casting upon him the suspicion at least of complicity in the larceny.
    
      Appeal from Lee District Court. — Hon. Henky Bank, Jr., Judge.
    Tuesday, June 1, 1909.
    The opinion states tbe material facts.
    
    Reversed.
    
      T. B. Snyder and Washington Qalland, for appellant.
    
      E. C. Weber and Hamilton & Fraley, for appellee.
   Weaver, J.

On February 6, 1906, the appellee filed an information before a justice of the peace of Lee County, Iowa, alleging: That four pictures, “The Hough Eiders,” “Warships,” “An English Scene,” and “Eock of Ages,” had been “feloniously taken” from the schoolhouse in district No. 1 in Yan Burén township in said county; that there was good reason for believing that Martha Eichardson had said pictures in her- possession; and that they were “supposed to be secreted at or about the house of Jacob Krehbiel,” the appellant herein. Upon strength of these allegations, the informant deinanded that a warrant issue for the search of the dwelling of .said Xrehb'iel. A warrant was issued for the search of appellant’s home for the discovery of the pictures and containing the following directions: “If the pictures are supj)osed to be locked up in a trunk and the key is not "delivered, bring the trunk.” These words were inserted in the warrant at the request of the appellee, who went with the constable to the home of the appellant and assisted in making the search. Upon their demand they were admitted ' to the room which had been occupied by a boarder, one Martha Eichardson, where were found certain pictures which appellee claimed to identify as having been stolen from the schoolhouse, and the officer took them into his possession. Upon application for change of venue, the justice issuing the warrant transferred the proceedings to the court of the next nearest magistrate, who, upon hearing the evidence, and finding the charge made in the information to be without sufficient support, dismissed the same and ordered a restoration of the property.. Thereafter appellant instituted this action for damages, alleging that in suing out said warrant and causing the search of his premises for alleged stolen property the appellee acted wilfully, maliciously, and without probable cause. On trial to a jury the plaintiff introduced evidence tending to show the state of facts hereinbefore set forth. It also tended to show that Martha Eichardson had been teacher of the public school in said district and at some time during the term she had decorated the walls of the schoolroom with cheap pictures, some of which were furnished by herself and her friends, and some had been brought to her by the pupils from their homes. -Among them were three or four brought by a son of the appellee, none of which are shown to have any material or substantial value. At the close of the term, Miss Eichardson burned most of the pictures she had placed on the walls, and upon asking the pupils what should be done with those furnished by themselves, and receiving no request for their preservation, burned them also. As she was at the railway station about to leave the neighborhood, she was accosted by the appellee, who insinuated that she had appropriated the pictures and demanded to know the contents of the grip she was carrying. The appellant, being present and rebuking him for his insolence, was told to keep still, and that he would hear from appellee later. The pictures taken under the warrant were identified by a third person as having been given .to the teacher by himself. The appellee is shown to have been quite officious in urging the issuance of the warrant and dictating its terms and in leading the invasion of the appellant’s premises. At the close of the testimony upon the part of the appellant, the appellee moved for a directed verdict in his favor on the ground that the showing made was insufficient to sustain a finding of malice on his part or want of probable cause in suing out the writ, and on the further ground that there had been shown no arrest of plaintiff’s person, no-seizure of his property or search of his premises, and no damages sustained by him. The motion was sustained, and judgment thereupon rendered against the appellant, who prosecutes this appeal therefrom.

The motion to direct a verdict should have been denied and the cause submitted to the jury. The right of the citizen to security in person and property against wrongful seizures and searches is one which the law has ever zealously safeguarded and ... a s-i • has express recognition m our otate Consti

tution. Constitution, Iowa, art. 1, section 8. That a violation of this right without reasonable ground therefor gives the injured party a right of action is thoroughly well settled. Reed v. Legg, 2 Har. (Del.) 173; Lawton v. Cardell, 22 Vt. 524; Dougherty v. Gilbert, 1 Tapp. (Ohio) 38; Whitson v. May, 71 Ind. 269; Doane v. Anderson, 60 Hun, 586 (15 N. Y. Supp. 459); Gardner, v. Neil, 4 N. C. 104; Miller v. Brown, 3 Mo. 127 (23 Am. Dec. 693); Olson v. Tvete, 46 Minn. 225 (48 N. W. 914).

True, evidence of malice and want of probable cause for the prosecution must be shown in order to sustain a recovery of damages, but the question as to the existence of these elements of the case is ordinarily one „ , t , • n ■ i ±or the jury to determine trom a considera- . ' . tion of all the facts and circumstances. While the court may instruct the jury what acts will or will not constitute probable cause, the question whether those facts have been shown remains for the decision of the jury, except only in those cases where the testimony is so clear and undisputed that all reasonable minds must agree in reaching the same conclusion therefrom. Center v. Spring, 2 Iowa, 393. Such is not the case presented by the record before us. The evidence tends very clearly to show both malice and want of probable cause, and, if the jury believed the statements of the witnesses to be true, as it could rightfully have done, a verdict for appellant was inevitable. So far as appears from the evidence no pictures had been feloniously taken from the schoolhouse by any person, nor is there any evidence whatever of facts or circumstances justifying in the slightest degree the charge that Miss Richardson had stolen them, or that stolen pictures were secreted in the plaintiff’s house. It is possible, of course, that, had appellee chosen to meet the issue with evidence in support of his defense, he could have proven facts placing his conduct in more favorable light; but as the record stands his conduct was inexplicable save upon the theory of deliberate malice or petty spite.

The theory of appellee’s counsel that arrest of plaintiff’s person or seizure of his property is essential to his right of action is unsound. Nor is it necessary to his action that he should have been expressly charged with the larceny of the alleged stolj rpi j. ,, j en goods, ihe essence of the wrong done to him was the unreasonable invasion of his home, which wrong was aggravated by the charge that stolen goods were there secreted — thus at the very least casting upon him the suspicion of complicity in larceny. Nor is it correct to say, as counsel does, that appellant’s house was not searched. The house was entered by the officer and the appellee, acting under authority of the warrant, and a demand was made by them for the production of pictures. Upon movement of appellant to comply with this order, he was followed by both officer and appellee, who searched through a roll of pictures there found and selected such as the latter laid claim to. We think it immaterial whether the officer and appellee themselves opened the trunk or other receptacle in which the property was kept, or -whether, yielding to their demand backed by the writ, the appellant himself delivered up the property. The invasion of the appellant’s home was none the less complete in the one case than in the other.

It follows from what we have said that the cause must be reversed at the cost of the appellee and remanded for new trial. — Reversed.  