I am unable to agree with the majority. If we concede that the defendant made a full and fair statement of the facts to the county attorney and acted on his advice, the question still remains whether, in commencing the prosecution, the defendant acted in good faith and in the honest belief that the plaintiff was guilty; and this, I think, was a question for the jury.Johnson v. Miller, 82 Iowa 693; White v. International TextbookCo., 144 Iowa 92.
Further, I do not think that the defendant can complain of an instruction that was in his favor, even though the issue of the plaintiff's guilt was not tendered by the pleadings. The question of his guilt inhered in the question of probable cause. If the jury found that he was in fact guilty, there was probable cause for the prosecution. Parkhurst v. Masteller, 57 Iowa 474; Bruleyv. Rose, 57 Iowa 651.
De GRAFF, C.J., joins in this dissent. *Page 134