On Motion for Eehearing.
Robinson, Ch. J.This is a contingent fee case. The plaintiff sues to recover $10,000 for a malicious prosecution and recovers a verdict of $2,200. The contingent fee business is becoming more and more demoralizing. It leads the lawyer into temptation; it tempts him to undertake desperate and unconscionable actions, to fix or unduly influence witnesses and jurors and to pervert justice.
This case presents a gross miscarriage of justice. Indeed it might well be acted on the stage as a burlesque on the lawyers and the court procedure. In July, 1917, at Kramer, in Bottineau county, the plaintiff was employed as agent of the elevator company to sell coal, feed, *518and flour. At the end of the year he had made default in the sum of $171, by using the property of the company for his own purposes, lie may have intended to pay the company, but he failed to do it. Ho is arrested for embezzling $171 in money, waives examination, gives bail, goes to trial and in ten minutes, more or less, is acquitted because the proof showed or tended to show only an embezzlement of chattels, and not of money.
In the next act the plaintiff brings an action to recover $10,000 for malicious prosecution, and obtains a verdict for $2,200. He claims that in defending against the criminal prosecution he incurred expense to the amount of $650, and in the majority opinion as written by Mr. Justice Bronson, it is said: “There is evidence to that effect,” and casts the responsibility on the jury. But there is no credible evidence to show that the plaintiff ever paid or incurred any expense, except as he may have agreed to divide the recovery with his attorney. The criminal prosecution was of his own seeking. It was a mere fiasco, a ridiculous failure. There was no reason for employing counsel to defend against it or against any prosecution without probable cause. But, as it seems, the plaintiff or his- counsel wanted a criminal prosecution to lay the foundation for this suit.
When arrested, he did not, like an innocent person, go before the magistrate and challenge proof of his guilt. He waived the proof, waived an examination, and of course the natural inference was that he had reason to fear the result of an examination.
On September 12, 1918, two months after the discharge of Shong by the company, the complaint was made to the state’s attorney. He drafted the complaint against Shong “for the embezzlement of money amounting to •$171.57.” Then he made on the complaint this certificate: “The complaint and evidence having been submitted to me, I hereby appi’ove the same and the issuance of a warrant. J. J. Weeks, state’s attorney.” It was the duty, of the state’s attorney to examine into the charges and either to approve or disapprove the issuing of a warrant. Comp. Laws, § 10,535. The presumption of law is that he did his duty. He says: “The confessed shortage of $171.57 — the money shortage — was determined by deducting from the record of sales made the amount of cash deposited and the accounts outstanding as reported by the plaintiff. The plaintiff was charged with the total *519sales, then credited with the cash and the accounts outstanding as reported by him.” “But when Shong took the stand in the criminal action he produced certain statements of account against, his friends that were not credited in the books of the company to an amount about equal the money shortage. And on the trial he explained the admitted shortage by saying that he took defendant’s coal, flour, feed and other property and did not take money.” “In the criminal action the court instructed the jury that to find defendant guilty it must appear that he embezzled money of the company, and not flour, feed, or coal.”
Now it appears that on the trial Shong did boldly and safely testify, in regard to the unpaid accounts: “These accounts were flour, coal, and feed bought from the Atlantic Elevator Company. I owed these parties money, but I charged their flour, coal, and stuff to the Atlantic Elevator Company and made a receipt of it just as though I had no account with myself, but I made a verbal agreement with them that at the end of my year in the elevator I would pay the accounts, because I figured that I would be getting $200 from the Atlantic Elevator Company, and I was short and I wanted to pay these fellows, but left the accounts with the company and made a report to the company. The stuff was not charged to me. It was charged to them, but I had a verbal agreement that at the end of the year I would take up their accounts with the company.”
Now, whether true or false, it was entirely safe for Shong to testify that he had reported to the company the ten unpaid accounts for goods sold to pay his own debts or to get property for himself. If untrue, there was no possible way of disproving it. Hence the word of Shong » does not prove it. It is in no way convincing and the strong circumstantial evidence is to the contrary.
Here is his entry of two accounts:
Exhibit 631, page 32.
Herman Thiel account.
$ '6.50 July 16i, O
5.75 July 16, C
35.00 Aug. 5 ...
$47.25
*520Credits.
Aug. 2. By Cash. ................................... $ 2.25
Aug. 2. Paid to myself by rent ........................ 45.00
$47.25
Here is the account of Louis Sonnenberg:
Exhibit 631, page 55.
Amount of Sales..................................... $79.20
“ 3 — 13. By Check .................................. 51.15
“ “ 3370#, 12.00 .................................. 20.00
Thus with coal of the company Shong paid his house rent, $45 — and did it within two weeks after his employment. With coal of the company he bought hay, 3,370 pounds, at $12 a ton, and on the books of the company gave the seller credit for $20. In regard to the credit of $45, Shong testifies: “I made the entry. I gave him credit for that rent on account.”
On the second entry he testifies:
“Q. Did you make that entry ? A. I did.
“Q. What does it mean ? A. I don’t know whod it means.
“Q. Is that 3,370 pounds of hay that Sonnenberg sold you ? A. I remember I did get some hay at that time.
“Q. And you gave him credit for that hay, did you not? A. Yes, sir.”
Now the court will note that at first he pretended he did not know what the account meant and finally, when pressed, he woke up and remembered that he did get the hay. Then he says that the ledger— Exhibit 631 — in which the account was kept, was not the ledger of the company and that it was not shown to Mr. Stinchfield. Thus it seems he was keeping Stinchfield in the dark. And still this court is disposed to hold him responsible for not making to the state’s attorney a full and true statement of the facts.
Then Mr. Sonnenberg is called as a witness. He testifies that the hay came to more than twenty dollars; that it came to twenty-two or twenty-three dollars, and that Shong promised to give him credit for it on the books of the Atlantic Elevator Company. “In August, 1918, *521I gave him a check for $4.55. It was supposed to balance my account. After his arrest in 1918 he offered to pay me for the hay, saying that he did not turn that money over to the company. I did not take it. The hay was sold to Shong on March 13, 1918, and fed to his two cows by himself. He could not have forgotten it.
Now I do hold and affirm that the record clearly shows that Shong did embezzle the coal that he exchanged for the hay. Sonnenberg did not sell his good hay on time to an irresponsible person. He traded the hay for the coal of the company. Shong may have intended to pay the company, but he never did pay; and so it is with the other accounts amounting to $171.57. Certain it is that Shong was doing what is known as a crooked business and making in the books of the company entries that were purposely blind and misleading, and regardless of what he says, the chances are more then ten to one that he never reported to the company the unpaid accounts. That would have spoiled the game he was playing.
. Mr. Justice Bronson says the record fully justifies the findings of the jury that the defendant did not make a full and fair disclosure of the facts to the state’s attorney. Now the jury has made no such finding and the learned Justice does not attempt to show wherein the defendant failed to make a full disclosure. There is no showing that he intended to deceive or mislead the state’s attorney or that he answered any question falsely. And now, with a record of two trials submitted to this court, I affirm that no two judges will agree on a full and fair statement of the facts.
Now I affirm that Judge Bronson does not correctly state the facts and he does cloud the case by stating a lot of irrelevant matter. The judge erroneously says: “Two juries by their verdict have held that the plaintiff was not guilty of the crime of embezzlement, and that there existed no probable cause to warrant belief of embezzlement of money or property.” Now I do most solemnly affirm that is not true. In the first case there was no question of probable cause or the embezzlement of chattels. The court instructed the jury thus: “The defendant is not charged with the embezzlement of flour or feed. He is charged with the embezzlement of money and, therefore, the state must prove an embezzlement of money.” In the second case — in the civil action — there was no legal question concerning the guilt or innocence *522of the accused. The only question was “Did the complainant have reason to believe the accused to be guilty of any embezzlement?” Comp. Laws, § 10,531. And even though Shong had been perfectly innocent, the complainant might have had reason to believe him to be guilty. The questions are these:
(1) Did the complaining witness have reason to believe that Shong was guilty ? If he did, then, under the statute, he was fully justified, and even required, to make the complaint.
(2) Did he make to the state’s attorney an honest and fair, and not a deceptive statement?
(3) Was the complaint malicious and without probable cause?.
By statute, if the complaining defendant had reason to believe that Shbng had committed a public offense, it was his duty to make the complaint. Sec. 10,530. Then the duty of the state’s attorney was to make a full investigation and inquire into the facts and to refuse to sanction a prosecution without probable cause. Sees. 10,629,10,630. Of course the presumption of law is that the state’s attorney did his duty, and likewise the presumption is that the complainant did his duty. The policy of the law is to protect those who honestly try to do a duty imposed on them by statute. If the complainant had reason to believe the defendant guilty of a public offense, his duty was to make the complaint. Sec. 10,530. He had a right to make to the state’s attorney a fair, honest statement of the case and to act on his advice, and to leave the prosecution to the state’s attorney — and that is what he did. And now he judges of this court arc in a better position than complainant to state the case. And yet no two of them will read the records and the evidence and agree on what is a fair statement. One judge says on his word and oath that there was reasonable cause to believe the accused guilty, and that in trading the coal for hay he was guilty of embezzlement. Another judge says to the contrary. In such a case it is certain the majority may be wrong. The judges have no claim to infallibility. But it were a grievous hardship and a shame for the judges to hold that in stating the case to the state’s attorney the complainant acted at his peril and that he was bound to make a statement in conformity with the views of the majority of the judges.
These are points on which it seems every judge should agree.
The record shows the plaintiff is by no means innocent of wrong*523doing. His conduct ill deserves commendation or reward. Defendants have done nothing worthy of punishment. Yet the verdict is so punitory and monstrous an affirmation of it would be to the court a monumental disgrace.