Wakely v. Johnson | Cases | Westlaw

Under this record there is no evidence to sustain the verdict. The defendant had done all that the law required him to do by placing all the material facts in the possession of his own and the prosecuting attorney, and acting upon their advice. Perry v. Sulier, 92 Mich. 72, 52 N. W. 801; White v. McQueen, 96 Mich. 249, 55 N. W. 843. But his counsel did not request the court to direct a verdict, and therefore the judgment cannot, for that reason, be reversed. Certain prejudicial errors were, however, committed.

1. The court stated to the jury that the plaintiff had been acquitted of the criminal charge. There was no trial, and therefore no acquittal. A dismissal of the case for a defective complaint is not an acquittal. An acquittal is a deliverance from the charge of guilt.

2. It was error not to give the following request: “The proofs in this case show that the defendant fully stated all the facts in this case to legal counsel before going to the prosecuting attorney. I charge you that an attorney of experience has a legal and moral right to advise whether certain facts will justify a criminal charge and arrest, and the person receiving such advice is justified in acting upon it if he fully and fairly states the facts to the attorney. The evidence in this case shows *288 that this criminal case was dismissed by the justice before whom it was pending on May 10th, the adjourned day. I charge you that a dismissal of this charge by the nonappearance of the prosecuting attorney is not sufficient evidence of probable cause.” Judgment reversed, and new trial ordered. The other justices concurred.