tute for the other. The party who is to take | no more license to invoke the provision rehas a choice, but he cannot enjoy the benefits of both." 2 Story, Equity Jur. (13th Ed.) § 1075, p. 415. When a widow takes in opposition to her husband's will, what does she receive? According to the statutes referred to, she receives a fixed and definite portion of the estate the share she would have taken had her husband died intestate; and that share is one-half in value after the payment of debts. "His widow refused to accept under the provisions of the will, but elected to take under the provisions of the law of descents and distributions; and hence she takes absolutely (instead of for life) one-half of all the estate of said Samuel Allen, deceased. The other half of the estate, we think, should be distributed in accordance with the will, or as near in accordance therewith as may be possible under the circumstances of the case. Of course the whole estate is first chargeable with the payment of the debts of the estate. Then the widow takes one-half thereof." len v. Hannum, 15 Kan. 625, 626. Al In the case of Gordon v. James, 86 Miss. 719, 39 South. 18, 1 L. R. A. (N. S.) 461, an ingenious argument was made that inasmuch as the widow renounced the will, she should take her share of the estate under the law, burdened with all the debts, since her husband was only partially intestate, and in cases of partial intestacy property undisposed of by the will should first be appropriated to the payment of debts. The court said: "The argument is perfectly sound, but the existence of the premises is erroneously assumed. Section 4496 does not say, upon the renunciation of the will by the widow, the decedent becomes 'partially intestate,' or 'intestate as to a portion of his estate,' but expressly recites that upon the filing of such renunciation the widow 'shall be entitled to such part of his estate, real and personal, as she would have been entitled to if he had died intestate.' If the decedent had died intestate in the instant case-and by operation of the statute quoted so he did, so far as regards the rights of his widow-the widow would have been entitled to one-half of his real and personal estate under certain well-understood conditions and limitations. And they are not difficult of understanding. Upon the death of an intestate the estate, both real and personal, stands charged with the debts of the decedent; the personal estate primarily; secondarily, when the personalty is exhausted, the real estate. After the payment of debts an heir's lawful portion of the residue vests in the widow." lating to the payment of certain debts than she has to invoke any other provision which may now seem to be advantageous to her. Her election was an election to measure her rights by the law, and not by the will, and the will cannot be used as a factor for the determination of the share of the estate which the statute awards. It may be true that the devisees of the land in controversy would not be allowed to dispute with any one interested in the will the binding force of the ninth clause upon them, but the widow has no interest in the will. The devisees are not obliged to answer to her respecting their conduct under it, and they have the right to insist that she do not intrude where she is not concerned. The quantity of the estate for distribution may be considerably diminished by its appropriation to the discharge of these purchase-money obligations, but that was a circumstance which she should have taken into account when she made her election. The widow argues that a decree should have been entered for the payment of the purchase-money liens out of the personal estate of the decedent. It does not appear that there is any personal estate in Kansas. Manifestly the district court of Osage county could not exercise jurisdiction to administer an estate situated in Illinois, and in due course of settlement in the proper court of that state, or to direct the course the executor should pursue with respect to assets held in the foreign state. It could extend the judgment no further than to bind the property within this state. The judgment of the district court is affirmed. All the Justices concurring. MICHAEL v. MATSON. (Supreme Court of Kansas. Dec. 11, 1909.) 1. MALICIOUS PROSECUTION (§§ 71, 72*) QUESTION OF LAW OR FACT-PROBABLE CAUSE-INSTRUCTIONS. In an action for malicious prosecution, the question of what information is sufficient to warrant a reasonably prudent man in believing is substantial error to submit it to the jury. another guilty of a crime is one of law, and it An instruction that, in order for probable cause for an arrest to exist, the facts must be such as would justify an ordinarily prudent person in entertaining a belief in another's guilt, and that whether such facts had come to the knowledge of the defendant at the time he caused the arrest of the plaintiff is a question for the jury to to mean that they are to decide not only what determine, is likely to be understood by the jury information the defendant had, but whether it was enough to justify a reasonable belief in the plaintiff's guilt. Such an instruction, unless accompanied by a clear and accurate statement of what specific facts under the circumstances of the particular case would, if found to exist, be sufficient under the law for that purpose, is materially erroneous. In this case the widow pleaded the will, and demanded affirmative relief by virtue of the ninth clause. She cannot be permitted to assume antagonistic attitudes. She is irrevocably bound by her former expressed determination not to recognize the will. She has [Ed. Note. For other cases, see Malicious Prosecution, Cent. Dig. & 160, 161; Dec. Dig. §§ 71, 72.*] 2. MALICIOUS PROSECUTION (§ 20*) - PROBA- [ 39 Mich. 222, 227; but denied application in BLE CAUSE. What constitutes probable cause for an arrest is a question of law, and, if a complaining witness believed upon reasonable grounds that the accused was guilty, it is not material, in an action against him for malicious prosecution, whether he believed that probable cause existed in a legal sense, unless as bearing upon the question of malice. [Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. §§ 26-28; Dec. Dig. § 20.*] 3. MALICIOUS PROSECUTION (§ 20*)-"PROBABLE CAUSE." It is not necessary, in order for "probable cause" for an arrest to exist, that the accuser shall believe that he has sufficient evidence to procure a conviction of the accused (citing Words and Phrases, vol. 6, pp. 5620-5627.) [Ed. Note. For other cases, see Malicious Prosecution, Cent. Dig. §§ 26-28; Dec. Dig. 8 20.*] 4. WITNESSES (§ 203*)-PRIVILEGED COMMUNICATIONS COMMUNICATIONS TO PROSECUTING ATTORNEY. Heyne v. Blair, 62 N. Y. 19, Donnelly v. Bur- In the present case the court gave this instruction: "You are instructed that, to conCommunications made by a complaining stitute probable cause for criminal prosecuwitness to the prosecuting attorney concerning tion, there must be such reasonable grounds his knowledge of matters relating to the prob- of suspicion, supported by circumstances suffiable guilt or innocence of the defendant are privileged, and cannot be given in evidence over ciently strong in themselves to warrant an his objection in an action against him for ma- ordinarily cautious man in the belief that licious prosecution. charged, and, in this connection, you are furthe person arrested is guilty of the offense [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 758; Dec. Dig. § 203.*] (Syllabus by the Court.) Appeal from District Court, Harvey County; P. J. Galle, Judge. Action by Grace Michael against C. E. Matson. Judgment for plaintiff, and defendant appeals. Reversed. F. L. Martin, for appellant. S. B. Amidon, B. M. Dale, and Jean Madalene, for appellee. MASON, J. O. E. Matson, while mayor of Burrton, verified a complaint charging M. M. Michael and Grace Michael, his wife, with violating the prohibitory law, and caused their arrest. The county attorney refused to prosecute, and the case was dismissed. Grace Michael brought action against Matson for malicious prosecution and recovered a judgment for $600, from which he appeals. Mc ther instructed that a mere belief that an innocent person is guilty of a crime is not alone sufficient to justify causing his or her arrest. The facts must be such as would justify an ordinarily intelligent and reasonably prudent person in entertaining such belief. Whether, in this case, such facts had come to the knowledge of the defendant at the plaintiff is a question of fact for the jury the time he entered the complaint against to determine from a preponderance of the evidence." This definition of what constitutes "probable cause" is doubtless sufficient1y accurate, although the use of "cautious" in place of "prudent" has been criticised. Clafferty v. Philp, 151 Pa. 86, 24 Atl. 1042. As it is not the province of the jury to determine what circumstances would induce a reasonably prudent man to believe another guilty of a crime, there seems to be no purpose in the giving of an abstract instruction on the subject. "Inasmuch as the question of probable cause is always to be determined by the court from the facts in each particular case, it would seem unnecessary to give to the jury any definition of the term, or any instruction upon abstract propositions relating to this subject. These abstract rules will guide the court in determining the question, but are apt to lead the jury away from their function of passing upon the effect of the evidence in support of the probative facts which the court may direct them to find in order to determine in which way their general verdict shall be rendered." Ball v. Rawles, 93 Cal. 222, 233, 234, 28 Pac. 937, 27 Am. St. Rep. 174. Nevertheless such an instruction We think the verdict must be set aside for the reason that the instructions were so worded as naturally to lead the jury to understand that they were the judges of what constituted "probable cause," and their findings show that they probably acted upon that understanding. There is some conflict on the subject; but the great preponderance of authority favors the view that the question of what facts are sufficient to constitute probable cause is one of unmixed law. 26 Cyc. 107; 19 A. & Encycl. of L. 669. Courts which acquiesce in the general statement of the rule sometimes refuse an unqualified application of it. For illustration, it is approved in Fagman v. Knox, 66 N. Y. 525, Erb v. German American Ins. Co., 112 Iowa, 357, 83 N. W. 1053, and Hamilton v. Smith, reasonable belief, founded on abundant evidence, that the accused person is guilty. Yet he may suppose, through ignorance of the law, that "probable cause" does not exist, and that if he fails to procure a conviction he is answerable in damages. Plainly he would not be liable under such circumstances. Probable cause would exist in fact and would afford him a perfect defense, whatever might be the result of the prosecution. The instruction given in this respect was clearly erroneous, and under all the circumstances of the case, must be deemed to have been prejudicial. is ordinarily not prejudicial, where the charge | tion unless as bearing upon the question of includes a statement of what facts would malice. A man may cause an arrest under a amount to probable cause in the case on trial. Jonasen v. Kennedy, 39 Neb. 313, 319, 320, 58 N. W. 122. The difficulty here is that the last sentence of the instruction quoted, although open to a different construction, naturally tended to lead the jury to understand that they were to decide for themselves whether the facts known to the defendant when he caused the plaintiff's arrest were such as would justify an ordinarily prudent person in believing her guilty. This misleading tendency, if not corrected by a clear and accurate statement of what concrete facts would justify a reasonable belief of guilt, is a ground for reversal unless it can be said The probability that the jury misconceivfrom the record that the jury were not ined the issues to be determined by them is fact misled. increased by the fact that, in the next inThe inference from the findings, however, struction, they were directed to consider, as is to the contrary. Two of the special ques-bearing upon the matter of probable cause, tions and answers read as follows: "Q. At the question whether the defendant believed the time defendant filed complaint, did he he had sufficient evidence to convict the believe that plaintiff's and her husband's plaintiff of the offense charged against her. house was a place where persons were per- The chances of conviction depend upon too mitted to resort for the purpose of drinking many conditions to make the prosecutor's intoxicating liquors as a beverage? A. Yes, opinion of the prospects in that respect a to some extent. Q. At the time the defend- factor in determining the existence of probant filed complaint, had he been informed, able cause. An adverse public sentiment and did he honestly believe, that the house of might make the conviction of a notoriously the plaintiff and her husband was a place guilty person almost hopeless, and yet the where persons were permitted to resort for institution of a prosecution might be not the purpose of drinking intoxicating liquors? only justifiable, but praiseworthy, and, in A. No, he had some information, but not the case of a public officer, obligatory. As enough to base an honest belief on." These was said in State ex rel. v. Foster, 32 Kan. findings are either in conflict, or they mean 14, 42, 43, 765, 3 Pac. 534: "If a county atthat Matson did believe Mrs. Grace Michael torney vigilantly and earnestly discharges guilty, but had formed that opinion upon in- his duty by frequent prosecutions in a comsufficient information. The natural conclu-munity seemingly indifferent to the enforcesion is that the jury were guided by their own judgment as to what information would be enough to serve as the basis for such an opinion. It is true the court elsewhere enumerated the grounds relied upon by the defendant as justifying the arrest, and instructed the jury that, if the facts were as he claimed, they constituted probable cause, and he was entitled to a verdict; but the qualifying words were added, "unless you should further find that the defendant, himself, after consulting with an attorney, believed there was no probable cause for the prosecution." The addition limited the effect of the rest of this instruction, and thus prevented a correction of the misleading tendency of the other. It necessarily introduced a new, irrelevant, and confusing element into the problem-the defendant's understanding as to what constitutes probable cause in law. Belief that probable cause exists for the arrest of a person is obviously a different thing from a belief that he is guilty. The latter is often said to be an essential ingredient of probable cause, although many of the definitions omit it. 26 Cyc. 29; 19 A. & E. Encycl. of L. 663; 6 Words & Phrases Judicially Defined, 5620 et seq; note, 26 Am. St. Rep. 140. The for ment of law, his action will of necessity call the attention of the public to the disregard of law and the dangerous consequences following therefrom. His action will oftentimes awaken a community to a just realization of its duty, and arouse its members from indifference to a willing obedience to all that the law demands. His action will oftentimes result in enlightening public sentiment and in crystalizing public opinion in favor of the enforcement of all the laws." The only other question which is thought to require discussion relates to the admission of evidence. The county attorney was called as a witness by the plaintiff, and was permitted to relate a conversation between Matson and himself relating to the liquor prosecution, before it was dismissed. The defendant objected to this on the ground that his statements to the county attorney, under the circumstances, were privileged. We think the objection should have been sustained, not on the theory that the relation of attorney and client existed, thus rendering the communication incompetent under the statute (Gen. St. 1901, § 4771, subd. 4), but for the reason that the evidence was inadmissible on the grounds of public policy. The client's secrets exists independent of the stat- | cern. * But there is another view of ute. Its basis is not the mere fact that the the subject. The matter concerned the adcommunication was confidentially made. Bar-ministration of penal justice, and the princines v. Harris, 61 Mass. 576, 578, 54 Am. Dec. ple of public safety justifies and demands 734. The reason for its existence is that the rule of exclusion." In State v. House"the law has considered it the wisest policy worth, 91 Iowa, 740, 60 N. W. 221, it was to encourage and sustain this confidence, by decided that a statute forbidding the disrequiring that on such facts the mouth of closure of any confidential communication inthe attorney shall be forever sealed." Hat-trusted to an attorney in his professional caton v. Robinson, 31 Mass. 416, 25 Am. Dec. 415. In Jones on Evidence (2d Ed.) § 749, it is said: "Communications made to the district attorney or other public prosecutor are governed by the same rule, and, if there is any difference, the confidence reposed in the attorney in such cases is even more sacred than that reposed in others." The interest of the public in protecting the privacy of a communication seems, indeed, greater when it is made to a prosecuting officer in that capacity than when it is made by a client to his attorney. Persons having knowledge regarding the commission of a crime ought to be encouraged to reveal to the prosecuting attorney fully, freely, and unreservedly the source and extent of their information. The possibility that what they say, under such circumstances, will be used against them, tends to impose a natural restraint upon their conduct and to deprive the officer of the benefit of their services. It is said that the privilege based upon this principle applies only to the identity of the informant (4 Wigmore on Evidence, § 2374, p. 3333), and such appears to be the English rule; but in this country it has been treated as covering the communication itself. The full report of State v. Phelps, Kirby (Conn.) 282, decided in 1787, reads: "On a criminal prosecution it was moved: That the state's attorney might testify what the prisoner had disclosed to him, upon an application to be admitted a witness for the state; which the court refused, and said: 'Disclosures, under such circumstances, to the attorney, ought to be considered as confidential, and it would tend to defeat the benefits the public may derive from them, should they be made use of to the prejudice of those from whom they come.'" In Oliver v. Pate, 43 Ind. 132, 141, it was held that the attorney and client rule applied, but for a reason thus stated: "Public policy requires that a person in making communications to a prosecuting attorney, relative to criminals or persons suspected of being guilty of crime, should be at liberty to make a full statement to him without fear of disclosure." Vogel v. Gruaz, 110 U. S. 311, 316, 4 Sup. Ct. 12, 14, 28 L. Ed. 158, is a case of the same character, citing the Indiana case with approval, and adding: "The free and unembarrassed administration of justice in respect to the criminal law, in which the public is concerned, is involved in a case like the present, in addition to the considerations which ordinarily apply in communications from client pacity protected communications made to a prosecuting officer by a complaining witness. In Gabriel v. McMullin, 127 Iowa, 426, 429, 430, 103 N. W. 355, 356, that decision was approved; but the court added: "But, aside from the statute, we think the rule of exclusion should be applied to all matters concerning the administration of justice, on the ground of public policy. A county attorney is an officer whose duty it is to investigate crime and to prosecute therefor, not in the interest of the individual who may have suffered, but for the good of the state; and it is very clear to us that it is not only the privilege, but the duty of every citizen who knows of facts tending to show the commission of a crime, to communicate such information to the public officer whose duty it is to investigate the matter and to commence a criminal prosecution if a crime has been committed. Any other rule would hamper the administration of justice. A party having knowledge of facts tending to show that a crime has been committed will hesitate to lay such facts before the proper officer if the information thus given may be made the basis of an action for damages against him." Cases of the same tendency, but in which the immunity was claimed by the public officer, are: State v. Brown et al., 2 Marv. (Del.) 380, 397, 36 Atl. 458; Worthington v. Scribner, 109 Mass. 487, 12 Am. Rep. 736; In re Quarles & Butler, 158 U. S. 532, 15 Sup. Ct. 959, 39 L. Ed. 1080. Granger v. Warrington, 8 Ill. 299, and Cole v. Andrews, 74 Minn. 93, 76 N. W. 962, are directly to the contrary; but in each case the question chiefly discussed was whether the relation of attorney and client existed, and in the latter it was held that, if the privilege could otherwise have been claimed, it had been lost by waiver. In People v. Davis, 52 Mich. 569, 573, 18 N. W. 362, 363, it was held that on the trial of a criminal case it was proper to allow the defendant to show, for the purpose of impeachment, that the complaining witness had made statements to the prosecuting attorney inconsistent with his testimony. The reason given was that public policy required an acquittal unless the accused was in fact guilty. The court said: "We are not called upon in this case to consider whether there may not be cases in which the prosecuting attorney would be excused, in the interest of the state, from disclosing what had been told to him with a view to the commencement of criminal proceedings. There would be strong the state should be inviolably kept; and nothing we shall say in this case will be intended to lay down a rule except for the very case at bar and others standing upon the same facts." A similar rule was applied in Marks v. Beyfus, 25 Q. B. D. 494, 498, where it was said: "If upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail." In Cobb v. Simon, 119 Wis. 597, 97 N. W. 276, 100 Am. St. Rep. 909, and also in Meysenberg v. Engelke, 18 Mo. App. 346, a claim of privilege was denied, but under such exceptional circumstances that the decisions throw no light on the question under consideration. In one case the communication was not made by the complaining witness, and in the other it was not made to the public prosecutor. It therefore appears that, while there is a conflict on the subject, the weight of authority supports the view here adopted. Appeal from District Court, Clark County; Gordon L. Finley, Judge. Action by Frank M. Arnold against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded. Bone & Harvey and Bottsford, Deatherage, Creason & Bottsford, for appellant. Wm. R. Smith, A. A. Scott, and O. J. Wood, for appellee. JOHNSTON, C. J. This action was based on the refusal of the Atchison, Topeka & Santa Fé Railway Company to accept as fare a ticket which it had sold to Frank M. Arnold, and also for ejecting him from a train at a place some distance from the station at which he had entered the train. It appears that on July 29, 1906, Arnold purchased a ticket from the agent of the railway company at Madison for passage from that point to Kansas City for which he paid full fare, $3.75. The ticket was of the card or token variety containing the name of the company and the words, "One continuous passage commencing within one day from date on back hereof. Madison to Kansas The judgment is reversed, and a new trial City. Void unless officially dated," and on ordered. All the Justices concur. ARNOLD v. ATCHISON, T. & S. F. RY. CO.† (Supreme Court of Kansas. Dec. 11, 1909.) CARRIERS ($ 358, 382*)-CARRIAGE OF PASSENGERS WRONG DATE ON TICKET-RIGHT TO RESIST EJECTION. A passenger was sold a ticket by a railway company, for which he paid full fare, and on which was printed, "One continuous passage commencing within one day from date on back hereof. Madison to Kansas City. Void unless officially dated"-but the agent of the company by mistake perforated the ticket with a date prior to the purchase. The ticket was accepted by the first conductor to whom it was presented, but the second conductor, observing the expired date, rejected the ticket, and the passenger, declining to pay another fare, was compelled to leave the train some distance from the station, when he walked back, boarded another train, paid an additional fare, and completed his journey. The passenger brought an action to recover damages for the loss and injury sustained, and produced testimony tending to prove the recited facts. Held, that the ruling of the court sustaining a demurrer to his evidence was erroneous; that the error in perforating the ticket was the fault of the railway company: that the passenger, having paid his fare, was entitled to a ride to his destination; that he was entitled to damages for the extra fare he was required to pay, and any actual loss arising from the refusal of the ride for which he had paid and from being compelled to leave the train. Held, further, that he could not enhance his damages by resisting the order of the conductor to leave the train, nor because of the force used in ejecting him by his refusal to obey the order. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1434-1438; Dec. Dig. §§ 358, 382.*] (Syllabus by the Court.) which was the printed signature of the general passenger agent. The agent perforated the ticket July 20, 1906, instead of July 29, 1906, and handed it to Arnold. He boarded the branch train at Madison, presented the ticket to the conductor, who accepted and punched it for Emporia, the end of the run. There Arnold boarded a main line train bound for Kansas City, and, when the ticket was presented to the conductor on that train, he pronounced it not good, and stated that, unless Arnold paid another fare, he must leave the train. Arnold insisted that the ticket had been sold to him by the agent of the company about an hour before, and refused to pay additional fare or to leave the train. The conductor called the porter, and compelled Arnold to leave the train about a mile and a half from the station at Emporia, and at a place where there was no station or siding. He started to walk back to the station, but, before reaching there, met and boarded another train of the company going to Kansas City, which carried him to his destination for an extra fare of $3.45. After the reception of evidence tending to After the reception of evidence tending to show the facts recited, the railway company filed a demurrer, challenging the sufficiency of the testimony offered in behalf of Arnold which the court sustained. Arnold had paid his fare, and was entitled to a ride on the train to Kansas City. The defective ticket was sold to him by the railway company, and the error in perforating the ticket was the fault of the company. He was compelled to pay another fare to secure the ride for which he had already For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |