cution of such criminal offense against the plaintiff herein would be no defense in this case." Other instructions of similar import, to the effect that the prosecuting witness must show that he had exercised due diligence in ascertaining the facts, were given to the jury, and an instruction asked by the defendant that if the jury believed from the evidence that Borchers fully and fairly stated the facts, as he understood them, to the deputy district attorney, and that the defendants relied upon that officer as to whether the facts stated constituted the offense, and that he prepared the complaint and had Borchers swear to the same, they should find for the defendants, was modified by the court so as to require the jury to find that Borchers "used due diligence in ascertaining such facts." The defendants excepted to the giving of these instructions, and also to the modification of the instruction asked by them.

One who causes another to be prosecuted for a crime is not liable in damages therefor, unless he acts through malice and without probable cause; and it is the policy of the law that whenever a citizen shall have reasonable cause to believe that a crime has been committed he shall be protected in his efforts to secure the punishment of the offender. (Ball v. Rawles, 93 Cal. 222; 27 Am. St. Rep. 174.) If in good faith and without malice he causes the arrest of the offender he is not to be mulcted in damages, because the defendant is able at the trial to establish his innocence. The facts within his knowledge may not in point of law constitute a crime, but, if they are of such a character as to induce in the mind of a reasonable man the honest belief that a crime has been committed, he is justified in seeking to have the crime punished. If, in addition to his own belief, he seeks the advice of one learned in the law, and after a full and fair statement of the facts within his knowledge is advised by him that they constitute a crime, his good faith in prosecuting the offender is corroborated. If, in addition to this, the person whose advice he seeks is the officer selected by the people to prosecute offenders

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against the laws, and he gives to that officer all the information that he possesses, and is then advised by him that a crime has been committed and the prosecution is made upon a complaint prepared by that officer, his good faith is established. Accordingly, it is held that if the prosecuting witness seeks the advice of such officer, and lays before him all the facts within his knowledge relating to the alleged offense, and is advised by him that they constitute a crime, he is protected in prosecuting the same. (Smith v. Liverpool etc. Ins. Co., 107 Cal. 432; Monaghan v. Cox, 155 Mass. 487; 31 Am. St. Rep. 555.) The defense of probable cause is sufficiently established if it be shown that he has laid before this officer a full, fair, and correct statement of all the facts that are known to him, or which he had reason to believe existed (St. Johnsbury etc. R. R. Co. v. Hunt, 59 Vt. 294), without any suppression, evasion, or falsehood (Walter v. Sample, 25 Pa. St. 275), and as he believes them to be (Jones v. Jones, 71 Cal. 89), and that he has acted honestly upon the advice given him. As, in order to constitute this defense, there must exist in his mind at the time of making the complaint a probable cause for the prosecution, his belief in the truth of the facts stated by him to the officer is essential to his good faith. If there are any circumstances within his knowledge, or which he is chargeable with knowing, which would destroy the apparent effect of the facts stated by him, or if, after obtaining the advice of counsel, and before acting upon it, other facts should come to his knowledge, which he did not submit, his good faith in seeking advice or in acting thereon would be impeached, and the defense dependent upon such good faith would fail. So, too, if he should suppress some material fact upon the mistaken belief that it was immaterial, the advice of counsel would be unavailing, for the reason that he had not laid before him all the facts within his knowledge. But, assuming that in seeking the advice of counsel, and in acting thereon, he has acted in good faith, and has disclosed all the facts within his knowledge relating to the offense

and the accusation, his defense of probable cause will be established, even though the defendant should show at the trial other facts sufficient to secure his acquittal, and which might have been ascertained by the prosecuting witness if he had made diligent inquiry therefor. It is not necessary that he shall institute an investigation of the crime itself, or seek to ascertain whether there are other facts relating to the offense, or try to find out whether the accused has any defense to the charge. He is not required to exhaust all sources of information bearing upon the facts which have come to his knowledge, for that would be to require him to perform the office of the committing magistrate, and thus thwart the very purpose of the law in inducing him to seek its immediate vindication for crimes committed against it.

There are expressions in some opinions to the effect that, in addition to the facts within his knowledge he must also have exercised reasonable diligence to ascertain whether there are any other facts bearing upon the charge; but in an extended examination of the authorities we have not been able to find any case in which it has been decided that such diligence must be exercised, or where the prosecuting witness has been held liable for failure to ascertain whether there were any other facts bearing upon the case. This question was directly presented in Johnson v. Miller, 69 Iowa, 562, 58 Am. Rep. 231, where the jury were told that one of the questions of fact for them to determine was whether the defendant made a full, fair, and honest statement to the district attorney of all the facts bearing upon the guilt of the plaintiff, of which they had knowledge, "and which they could have ascertained by reasonable diligence." The court held that this qualification was erroneous, saying: "He is not required to institute a blind inquiry to ascertain whether facts exist which would tend to the exculpation of the party accused, but, if he honestly believes that he is in possession of all of the material facts, and makes a full and fair statement of the facts to the counsel, and acts in good faith on the

advice given him, he ought to be protected." It may be that the facts within his knowledge are such as to put him upon inquiry with reference to other facts by which he would be chargeable with a knowledge of all that such inquiry would have shown, or it may be that his own relation to the facts brought to his knowledge would make him presumptively cognizant of other facts. These circumstances, however, would bear upon his good faith in making the statement in that particular case, rather than establish the rule that he must in all cases exercise any diligence or effort for the purpose of ascertaining whether there are other facts than those which have come to his knowledge, and fall within the rule requiring him to state without any suppression all the facts actually or presumptively within his knowledge. As was said in Johnson v. Miller, supra: "It would be a very harsh rule, and one calculated to discourage entirely the making of complaint by private individuals to hold that one who has acted on the advice of the district attorney, given upon a full and fair statement of all the material facts which he knew, or which he had reasonable ground to believe existed at the time, was not protected by the advice of the attorney, simply because he did not, before making the complaint, learn of other material facts, of the existence of which he might have learned by reasonable inquiry."

These instructions are also at variance with the following instruction, which was also given by the court: "If you believe that the defendant Borchers fully and fairly stated to the deputy district attorney the facts of the case against Hankins and Dunlap, as he understood such facts, and that the defendants in good faith acted and relied on the advice of the district attorney given thereon, your verdict must be for the defendants."

In this latter instruction the jury are told that it was a sufficient defense, if Borchers fully and fairly stated to the deputy district attorney the facts of the case as he understood them, while in the other instructions they were told that, in addition to such statements, it

must be shown that he stated all the facts which he could have ascertained by due diligence. The jury must have been misled by these differing instructions and uncertain which to follow.

The judgment is reversed.

GAROUTTE, J., and VAN FLEET, J., concurred.

[No. 16028. Department One.-October 5, 1895.]

MANUEL JOAQUIN DE SILVA ET AL., APPELLANTS, v. SUPREME COUNCIL OF PORTUGUESE UNION, DEFENDANT. FRANK SILVA DUTRA, INTERVENOR, RESPONDENT.

MUTUAL BENEFIT SOCIETY-CHANGE OF BENEFICIARY-WILL.-Where the constitution of a mutual benefit society does not provide for a change or substitution of beneficiaries in certificates issued by it, a provision in the will of a member attempting to dispose of the money coming from a certificate of insurance as money to become due at his death, to a person other than those named as beneficiaries in the certificate, is not effective to make a change of beneficiaries, and the provision of the will cannot be construed as a revocation and substitution of beneficiaries, which, if made at all, must be made during the lifetime of the testator, who cannot revoke and substitute a beneficiary after death. ID. POWER OF TESTATOR-TESTAMENTARY DISPOSITION. A testator cannot make a testamentary disposition of a certificate of insurance to any other person than the beneficiary named in the certificate, and can only make a revocation and substitution of beneficiaries to take effect during life.

APPEAL from a judgment of the Superior Court of Alameda County. F. W. HENSHAW, Judge.

The facts are stated in the opinion of the court.

M. C. & E. C. Chapman, and T. M. Bradley, for Appellants.

The certificate was in substance a policy of mutual life insurance. (Commonwealth v. Wetherbee, 105 Mass. 160; Weisert v. Muehl, 81 Ky. 340; Bacon on Benefit Socities secs. 255 304.) The beneficiary named in the