(dissenting.) In the administration of the law the first duty of a court is to prevent one party from robbing another. On a complaint for embezzlement the plaintiff escaped by the skin of his teeth and a mistake by the state’s attorney. Then in this action for malicious prosecution he recovers a verdict for $2,200. The complaint and the information made no charge against the plaintiff, only embezzlement of money to the amount of $171, whereas the proof tends to show only an embezzlement of property. The ordinary layman may well be excused for not knowing the distinction between an embezzlement of money and of goods and chattels, but, on the record, it does not appear that the state’s attorney had any excuse for drafting the complaint and the information as he did for the embezzlement of money. Nor does it appear that he had any excuse for drafting the information and going to trial without any evidence to show a conversion of money. He was the person who had sole charge of the criminal prosecution. He drafted the complaint, which was dated September 12, 1918, and he drafted the information, dated February 17, 1919. Between those two dates he'had plenty of time to investigate the facts. In March, 1919, he conducted the prosecution before Judge Buttz and a jury, and, of course, it resulted in a verdict and judgment of acquittal.
Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted. Comp. Laws, § 9929.
Sec. 9936: “A distinct act of taking is not necessary to constitute embezzlement, but any fraudulent appropriation, conversion, or use of property coming within the above prohibition is sufficient.”
Sec. 9939: “The fact that the accused intended to restore the prop*502erty embezzled is no ground of defense if it has not been restored before a complaint has been laid.”
Now in this ease while the plaintiff did not embezzle money of the corporation that employed him, it does appear that he did what is known as a crooked business, to which he was tempted and almost forced by his poverty. He was twenty-seven years old; he 'had a family of three children and a wife. He lived with them in Kramer. He had a salary of only $60 a month, which he accepted because his pool business had played out, for it was a lean year in which it did not pay to keep the elevator open and it took in only three carloads of wheat. So it appears the plaintiff became indebted to several of his relations and other persons and apparently stood them off or liquidated his own debts by selling them property of the elevator company and promising to pay the company.
In that way he used the property of the company to the amount of $171. He says: “I charged them with the flour, coal, and stuff just as though I had no account with them myself, but I made a verbal agreement with them that at the end of my year in the elevator I would pay their account, because I figured that I would be getting in the neighborhood of $200 from the elevator company, and I was short and I wanted to pay these fellows. In that way they could get their bills straightened up and I got my money. But I left their account just the same with the company and reported to the company as though they never owed me a cent.”
When the complaint was made the accused waived examination and gave bail. Then he went around, saw his friends and creditors and tried to induce them to pay their debt to the company on assurances that he would pay them. The complaint and the arrest was the natural result of crooked business. The case presents three questions: (1)
Was the prosecution malicious? (2) Was it without probable cause? (3) Is the damage excessive ?
Malice is the very essence of the action. The lack of probable cause is of no consequence only as it is evidence of malice. “ ‘Malice’ and ‘maliciously’ import a wrong wish to vex, annoy, or injure another person or an intent to do a wrongful act.” Sec. 10,360. Malice is a condition of the mind or the head, and not of the foot. Where there is no mind there can be no malice or intent. A corporation has no mind. *503It is a legal entity, existing only in the contemplation of law. Hence it cannot be guilty of malice. True it is said that most of the decisions are to the contrary. 18 R. C. L. 45. But there is no good reason why this court should follow such wrong decisions and pile error upon error. The statute is that “Malice imports a wrong wish to vex or injure a person.” Hence, where there is no such wish or intent, there can be no malice. Thus it is that idiots, lunatics, and mere corporate entities having no mind, cannot be guilty of malice, though they may be guilty of torts not requiring an act of the mind. That is self-evident. It is as clear as any axiom. The making of the complaint was not the act of the corporation or its directors. There is no evidence that any director knew of it. It was the direct act of the state’s attorney, who advised it, and of the person who signed it, and there is not a scintilla of evidence that he was actuated by malice. On the contrary, it appears that he was a stranger to the defaulting elevator agent and gave him every opportunity to pay his confessed shortage. He consulted the law officer and was advised to make the complaint. There is a wrongful assumption that his statement to the prosecuting officer was not full and fair, but such is not in accord with the evidence or the; presumptions; and, of course, the complainant did not have before him all the mass of stuff submitted as evidence to this court. And we may fairly assume that after reading such evidence and exhibits, which would require at least three days, no two judges would agree as to a full and fair statement of the same. Besides it appears that the agent had kept his books in such a way as not to disclose the real nature of his questionable transactions. The books do not show how he sold the property of the company to get credit or to stand off his creditors. That was a new device. Manifestly if the agent had kept his books right and had done a straight, honest business, there would have been no occasion for a criminal prosecution against him.
The criminal complaint, as drafted by the state’s attorney, was signed and sworn to by the defendant, C. E. Stinchfield, the superintendent of the company. So far as the evidence shows, the complaint was made in good faith, and not maliciously. The complainant was not a lawyer and he did not retain private counsel. He went to the state’s attorney and to him stated the case. As he had no reason for making a wrong statement, the presumption is that he made a fair and honest statement *504of the facts as understood by him. lie stated the facts as he had learned them from the plaintiff and the meager records kept by him. The facts did show a misuse of the corporate property, but not a conversion of money. There was probable cause for believing that a public offense had been committed, but the offense was not properly charged in the complaint or in the information. However, that was not the fault of the complainant. Had the complaint and the information been properly drafted, the facts as proven would have sustained a verdict of guilty; but, under all the circumstances, the chances are that a jury would not have found a verdict of guilty under any complaint or any true testimony. And still there was probable cause. The complaint against the defaulting agent was only for the embezzlement of money. If there was no probable cause that he had embezzled money or property, why did he waive examination and give bail; why did he not stand a preliminary hearing before the magistrate and defy the prosecution ? It must be that he feared the result of an examination. His shrewd counsel must have feared that he might be held for the embezzlement of property, though the charge was not in the complaint. Of course he did not fear the charge of embezzling money. Hence he waived an examination and invited a trial on the false charge. In that way he did entrap or deceive the prosecuting attorney who filed an information for the embezzlement of money only and went to trial in a haphazard way without any investigation of the facts. It is not the duty of the state’s attorney to prosecute an innocent person, or any person, without probable cause. His duty was to make a full investigation and inquiry into the facts touching the alleged crime. Sec. 10,629. And in case it appeared that no offense had been committed, it became his duty to refuse to file an information. Sec. 10,630. In this case the duty of the state’s attorney was to examine the books, to inquire into the matter, to hear both sides of the case and to refuse to file an information for the embezzlement of money when there was no evidence to sustain it.
The verdict of $2,200 is not merely excessive. It shocks the conscience and it has no support in the evidence. If the defendants hád not appeared and conducted the trial in a tactless way, it is quite certain that such a verdict would not have been given. But on the trial, by overzeal, counsel for defendants made a mountain out of a molehill, cross-examined the accused agent till he became a kind of martyr, pro*505tracted the trial, putting in evidence countless and confusing exhibits and a mass of testimony. It was enough to swanp the real and simple merits of the case.
However, it is entirely clear that the primary fault was with the agent; he has not been slandered or maligned; and so far as he did a crooked business, it was proper to expose it to the light of truth. That was not a legal injury. Aside from that he suffered no injury, because he waived examination before the magistrate and invited a trial on a false issue, the embezzlement of money. On that charge there was no proof — and he knew it. There was no need of counsel to defend him. There was no reason for incurring any expense, and before any expense was incurred, he had every opportunity to settle the matter by paying his shortage; $111, or by inducing his friends to pay for the coal, feed and other property of the company which he had sold them to set off or liquidate his own debts, promising to pay the company for its property.
The trial, both of this and the preceding criminal action, was made in reality a burlesque, and though the lawyers were the principal actors, the trial judge did his part. He magnified this case and made of it a grave matter. He gave the jury a charge of over 3,000 words and gravely cautioned them against finding damages in excess of $10,000. The wonder is that the jury did not resolve in favor of the Plumb plan and solace the defaulting agent by an award of the Atlantic Elevator. Assuredly the judgment should be reversed and the action dismissed.