
    David Nehr v. John A. Dobbs.
    Filed April 7, 1896.
    No. 6452.
    1. Malicious Prosecution: Probable Cause: Evidence: Conviction. In an action for malicious prosecution, a presumption of the existence of probable cause is established by proof that the plaintiff was convicted in the criminal action. But this presumption may be rebutted.
    2.-: -: -: -. It is not true that the evidence of probable cause afforded by proof of a conviction, can be rebutted only by showing that the conviction was procured by fraud or perjury. These are only instances. Such evidence may be rebutted by proof of any facts which show that the conviction was under circumstances depriving it of any naturally probative effect.
    3. --: -: Pleading. A petition in an action for malicious prosecution pleaded that the plaintiff had been convicted in the county court and on appeal in the district court; that the conviction had been reversed by the supreme court and the cause thereafter dismissed.' It was also pleaded that the defendant, when he instituted the prosecution, was aware of certain facts which in law established the innocence of the plaintiff; that he had himself in the county court testified to those facts; whence it appeared that the conviction in the lower courts was not upon any consideration of evidence which would justify a conviction, but was due solely to a misapprehension of law. Held, That the petition sufficiently pleaded want of probable cause.
    4.-: -: Question of Law. The existence of probable cause, the facts being established, is a question of law, and if the defendant is aware of facts establishing the innocence of the plaintiff, a misapprehension of the law does not create probable cause, although it may affect the issue of malice.
    Error, from tbe district court of Gage county. Tried below before Babcock, J.
    The opinion contains a statement of the case.
    
      Hardy & Wasson, for plaintiff in error:
    In an action for malicious prosecution a judgment of conviction against the plaintiff is prima facie evidence that there was probable cause for the prosecution, but such evidence may be rebutted by proof that the judgment was based upon false testimony and was without foundation in law. (Olson v. Neal, 63 la., 216; Burt v. Place, 4 Wend. [N. Y.], 591; Newell, Malicious. Prosecutions, 275; Hazzardv. Fkiry, 120 N. Y., 223; Goodrich v. Warner, 21 Conn., 432; Phillips v. Oity of Kalamazoo, 53 Mich., 33; Richter v. Koster, 45 Ind., 440.)
    The criminal action was voluntarily dismissed. The burden of showing cause for its commencement was upon defendant. (Burhans v. Sanford, 19 Wend. [N. Y.], 417; Gilbert v. Emmons, 42 Til, 143; Kinsey v. Wallace, 36 Cal.,. 462; Green v. Cochran, 43 la., 544.)
    
      
      Hugh J. Dobbs, contra:
    
    A conviction of the offense charged, when obtained without perjury, subornation of perjury, fraud, collusion, conspiracy, or other misconduct •on the part of the complaining witness and trial court, is sufficient evidence of probable cause to •defeat an action for malicious prosecution, although such conviction be followed by a reversal ■of the judgment, or by a new trial and an acquittal. (Gloonv. Gerry, 13 Gray'[Mass.], 201; W-itham v. Goteen, 14 Me., 362; Payson v. Caswell, 22 Me., 212; Bitting v. Ten Eyck, 82 Ind., 421; Parker v. Farley, 10 Cush. [Mass.], 279; Parker v. Huntington, 2 Gray [Mass.], 125; Commonwealth v. Davis, 11 Pick. [Mass.], 433; Whitney v. Peckham, 15 Mass., 243; Herman v. Broolcerhoff, 8 Watts [Pa.], 240; Adams v. Bicknell, 126 Ind., 210; Reynolds v. Kennedy, 1 Wils. [Eng.], 232; Griffis v. Sellars, 31 Am. Dec. [N. Car.], 422; Clements v. Odorless Excavating Apparatus Go., 67 Md., 461; Burt v. Place, 4 Wend. IN. Y.], 591.)
   Irvine, 0.

This was an action for malicious prosecution by the plaintiff in error against the defendant in error. A general demurrer to the petition wars sustained, and from a judgment entered thereon the plaintiff prosecutes error.

The point relied on in support of the demurrer is that the petition discloses that the plaintiff suffered a conviction in the court in which the prosecution complained of was instituted, and that while it is alleged that this conviction was reversed on appeal, the conviction in the original •court was conclusive of the existence of probable cause for the prosecution, or, if not conclusive, it could be rebutted only by evidence of fraud, perjury, or subornation of perjury, leading to the conviction, none of which was pleaded. The petition alleges that the defendant falsely and maliciously, and without probable cause, charged the plaintiff before the county judge of Gage county with having maliciously and unlaAvfully shot and killed a certain dog, the property of Dobbs; that he caused plaintiff’s apprehension in such cause; that on the trial before the county court, Dobbs testified and admitted that the dog killed had no collar upon his neck with a metallic plate thereon inscribed with the name of his owner; and that the dog was running at large and attacked the-plaintiff; that all such facts were well known to. the defendant when the charge was made; that the plaintiff was convicted in the county court; that he appealed to the district court; that he Avas there again convicted; and that he prosecuted error to this court, where the judgment was reversed; and that after the cause was remanded to. the district court it was dismissed. That it is not unlawful to kill a dog running at large, not bearing the collar required by law, was decided in Nehr v. State, 35 Neb., 638, which, by the way, is. the case which constitutes the foundation of this, action. It is therefore in effect pleaded that defendant caused plaintiff to be prosecuted, knowing the fact, which showed that he was guilty of no offense; that in the county court he testified frankly to those facts; that the plaintiff was, notwithstanding, convicted by the county court, and on appeal by the district court, on account of a misapprehension of law; and that the error was corrected by this court on proceedings in error, the conviction reversed, and the cause finally dismissed. The question, therefore, presented is-whether the conviction in the county court, or in the district court, or in both, was conclusive evidence of the existence of probable cause for the prosecution, notwithstanding the fact that the plaintiff was aware of the facts which on a correct interpretation of the law would defeat the prosecution. The older cases are, we think, all to the effect that a conviction is conclusive evidence of the existence of probable cause for the prosecution; and there are many cases holding that, this is true, although there may be an acquittal, on an appeal or after a reversal of the judgment.. (Herman v. Brookerhoof, 8 Watts [Pa.], 240; Clements v. Odorless Excavating Apparatus Co., 67 Md., 461; Cloon v. Gerry, 13 Gray [Mass.], 201; Whitney v. Peckham, 15 Mass., 243.) In the Maryland case-cited there is a strong dissenting opinion published in an appendix. (67 Md., 605.) There are-many other Massachusetts cases in line with those-cited, although that of Morrell v. Trenton Mutual Life & Fire Ins. Co., 10 Cush., 282, recognizes the-fact that there may be some exceptions to the rule.. The same may be said of Phillips v. City of Kalamazoo, 53 Mich., 33. On the contrary, the injustice of a universal application of such a rule has been long recognized. An early case of this character is Burt v. Place, 4 Wend. [N. Y.], 591. In that case it was held that although- there had been a conviction, the evidence afforded by that fact of the-existence of probable cause was rebutted by proof that a full defense had existed to the knowledge of the defendant, and that he had caused the-plaintiff to be detained as a prisoner for the purpose of preventing him procuring such evidence to establish his defense. Following this case, there is a long and well reasoned line of authorities to the effect that although the plaintiff may have been convicted, still if his conviction, was procured by fraud, by perjury, or by subornation of perjury on the part of defendant, these facts may be shown to rebut the presumption of probable cause arising from the conviction. (Olson v. Neal, 63 Ia., 214; Witham v. Gowen, 14 Me., 362; Payson v. Caswell, 22 Me., 212; Richter v. Koster, 45 Ind., 440; Adams v. Bicknell, 126 Ind., 210; Goodrich v. Warner, 21 Conn., 432.) The last two cases cited do not undertake to define the exceptions to the general rule, but are to the effect generally that the conviction, although it be afterwards reversed, is prima facie evidence — and that only — of the existence of probable cause. To the same effect is Knight v. International & G. N. R. Co., 61 Fed. Rep., 87. The best review of the cases to which our attention has been called is contained in the case of Crescent City Live Stock Co. v. Butchers’ Union Slaughter-House Co., 120 U. S., 141. The conclusion was there reached that all the cases can be reconciled by adopting the doctrine that the presumption of probable cause arising from a conviction can be rebutted only by showing that the conviction had been obtained by fraud. This court has recognized the principle that where the conviction has been procured by fraud or perjury, even an unreversed conviction does pot necessarily defeat a recovery. (Murphy v. Ernst, 46 Neb., 1.)

A bald application of the foregoing cases would lead to an affirmance of this judgment, because the petition does plead a conviction both in the county and in the district courts; and it is not pleaded that the defendant resorted to any fraud, perjury, or false testimony to procure the same. We think, however, that the cases cited hardly warrant so narrow a conclusion as that adopted by the supreme court of the United States in Crescent City Live Stock Co. v. Butchers’ Union SlaughterHouse Co., supra. Indeed, the court in that case did not undertake to precisely define the rule, and expressly stated that no such precise definition was necessary to a decision of the case before it. All the cases, with one exception, in which the courts undertook to define the exceptions were cases where fraud or perjury was alleged, or cases, resolved in favor of the defendant because no exception was alleged, and where fraud and perjury were merely mentioned incidentally as sufficient to take the case out of the rule. The principle which we induce from the cases is this: that a conviction is always sufficient prima facie evidence of the existence of probable cause; but that this is. a rule of evidence, founded upon the fact that ordinarily if a court has proceeded to conviction, it must have had before it such evidence as in the mind of a prudent and reasonable man would convince him of the guilt of the accused; and that,, therefore, a. subsequent reversal, while it may show that the accused was in fact innocent, does not show that there was no probable cause for believing him guilty. Where, however, the conviction is under such circumstances as to deprive it of such naturally evidentiary effect, this presumption ceases. Where it is shown that the conviction is procured by fraud, or by perjury, or by subornation of perjury, we have cases where the conviction has no convincing effect upon the mind; and when the courts have stated that establishing that the conviction was had under these circumstances rebuts the natural presumption from an ordinary conviction, they have simply declared that such exceptions do exist, and have not declared that there may not be other exceptions. In the case before us it is pleaded that the defendant knew and testified that the dog was running at large without a collar. This court has declared that under such circumstances it is lawful to kill the dog. Therefore, the conviction in the county court and in the district court could not have been due to an error in weighing the evidence, but it must have been due solely to a mistake of law arising from such admitted facts. The presence or absence of probable cause for a prosecution, the facts being-established, is for the court and not for the jury (Turner v. O’Brien, 5 Neb., 542), — that is, it is a question of law and not of fact; and while a mistake of fact on the part of defendant in an action of malicious prosecution may affect the question of probable cause, a mistake of law does not. (Hazzard v. Flury, 120 N. Y., 223.) A misapprehension of the law may affect the issue of malice, but not that of probable cause. If the county court had properly interpreted the law the plaintiff would have been discharged, and the fact that defendant was aware of those things which justified plaintiff’s conduct could have been shown in evidence to establish want of probable cause. Is there any reason why the misapprehension of law by the county judge should affect the case and destroy a cause of action which would have existed had the law been correctly determiued in the first instance? We think not. The reason that a conviction procured by perjury is not proof.of the existence of probable cause for the prosecution is that the false testimony deceived the trial court, so that the inference naturally drawn from a judgment of that court is no longer a reasonable inference. So where it is pleaded that the proof disclosed an entire want of probable cause, but that ■the court mistook the law, and that on appeal the judgment was for that reason reversed, the probative character of the judgment of conviction is in like manner destroyed. The case is very different from nearly all the cases in which the old rule was laid down, which were cases where the law was «clear, and the only question was whether the facts had been correctly determined on conflicting evidence. In such cases the judgment of conviction is most clearly and forcibly probative. We have found no case supporting the application of the rule just announced, in direct terms. But we think it is in principle supported by all the cases which recognize a conviction only as prima facie evidence and hold that it may be rebutted. The ease of Herman v. Brookerhoof, supra, was a case like this, and is contrary to the view which we liave taken. But it was decided in 1839, citing only very early cases, and only a few years after the case of Burt v. Place, supra, marked the first •departure from the old doctrine. It proceeds ■upon purely technical grounds, and we do not think it should be followed. We hold, therefore, that the petition, by pleading a knowledge by the defendant, at the time he instituted the prosecution, of facts which in law discharged the plaintiff from culpability, and in pleading sufficient to show that the conviction in the lower court was •due to a misapprehension of law, and not to a consideration of evidence justifying a conviction, sufficiently rebutted the presumption of probable •cause arising from the first conviction. The effect of these facts on the issue of malice we do not determine. Malice was pleaded and is a question for the jury.

Reversed and remanded.  