Williams v. Frey

In Williams v. Frey, 1938 OK 280, 182 Okla. 556, 78 P.2d 1052, Williams complained to the Sheriff and County Attorney that Frey had stolen his iron kettle and some pipe. Williams alleged that Frey told him, a few weeks previously, that he intended to take the kettle, and, after it came up missing, Frey's brother told him Frey had taken the kettle. Based upon Williams' information, the County Attorney obtained a search warrant and found the kettle on Frey's property. Criminal charges were filed and then dismissed when Frey's sister, who also lived on Williams' property, stated that she had loaned the kettle to Frey. Frey obtained a judgment for malicious prosecution. In reversing, the Supreme Court stated that once a defendant makes full disclosure to his attorney, his reliance upon the attorney's advice is a complete defense and he has no duty to affirmatively investigate: It is suggested that the defendant did not do all within his power to discover the facts; that he should have inquired of the plaintiff's sister whether she had given him permission to take the articles. . . The doctrine announced in Roby v. Smith, 1914 OK 30, 40 Okla. 280, 138 P. 141, which has since been followed, states as follows: Where the defendant relies upon advice of counsel as a defense, the disclosure to counsel required of him before acting upon such advice is not a disclosure of all the facts discoverable, but all the facts within his knowledge. If he knows facts enough, either personally or by credible information, which, when fairly and fully stated to reputable counsel for the purpose of obtaining legal guidance, results in advice which is honestly followed in commencing the criminal proceeding, that is sufficient. Id.