mere failure of the prosecution.' The burden of proof of malice is also upon the plaintiff.2

§ 1102. Law and Fact. The question of probable cause is for the court to decide, except where the facts are disputed, in which case the jury must decide.1 In short, the question of probable cause is a mixed question of law and fact: whether the circumstances do or do not show probable cause is a question of law; whether they did or did not exist is a question of fact.5

!

486.

trary to the weight of authority) that the proper practice is to instruct the jury as to what constitutes probable cause in law, and then leave them to apply the facts thereto, and to find therefrom whether probable cause is or is not proved.' In California, the appellate court will reverse where plaintiff in an action for malicious prosecution was nonsuited on the ground that want of probable cause for the prosecution was not shown, if there was evidence of want of probable cause which should have been submitted to the jury. The jury should be distinctly told whether, the facts being found, probable cause is or is not proved.3 Where the circumstances relied on as evidence of probv. Lumley, 50 How. 105; Dietz v. v 2 Simmons v. Brinkmeyer, 72 Cal. Langfitt, 63 Pa. St. 234; Driggs v. Benton, 44 Vt. 124; Harkrader v. Moore, 44 Cal. 144; Ulmer v. Leland, 1 Me. 135; 10 Am. Dec. 48; Crabtree v. Horton, 4 Munf. 59; Maddox v. Jackson, 4 Munf. 462; Munns v. Dupont, 3 Wash. C. C. 31; Boyd v. Cross, 35 Md. 194; Hill v. Palm, 38 Mo. 13; Plummer v. Green, 3 Hawks, 66; 14 Am. Dec. 572; Miller v. Brown, 3 Mo. 127; 23 Am. Dec. 693; French v. Smith, 4 Vt. 363; 24 Am. Dec. 616; Walbridge v. Purden, 102 Pa. St. 1; Travis v. Smith, 1 Pa. St. 237; 44 Am. Dec. 125, the court saying: "As the authority to institute a criminal prosecution and the extent of that authority are derived from the law, the law must judge of its exercise; it is therefore the duty of the court to determine whether the proof of certain facts constitutes probable cause, and it is error to submit that question to the jury. The duty of the jury is to say what facts are proved, and for that purpose they are to decide on the weight of evidence, the credibility of witnesses, the truth of conflicting allegations. The general question of probable cause is then a mixed question of law and fact, composing two distinct inquiries, both conducted at the same time on a jury trial, but yet cognizable before two distinct tribunals, each of which discharges its proper functions."

Shaul v. Brown, 28 Iowa, 37; 4 Am. Rep. 151.

3 Ulmer v. Leland, 1 Me. 135; 10 Am. Dec. 48; Bulkeley v. Smith, 2 Duer, 261; Bulkeley v. Keteltas, 6 N. Y. 384; but see Caldwell v. Bennett, 22 S. C. 1. In Masten v. Deyo, 2 Wend. 424, the judge told the jury that he was inclined to believe there was evidence enough given of probable cause to protect the defendant, but left it to them to decide. On appeal this was held to be error. "The judge erred," said Marcy, J., "in not giving the defendant the benefit of his exposition to the jury of the law relative to what constituted probable cause in an action for a malicious prosecution. He should not have taken the cause from the jury if there was the least doubt as to the existence of the circumstances alleged as the probable ground of the criminal proceedings against the plaintiff, but he ought to have instructed them as to the law involved in the question, and as to what constituted a legal excuse for the defendant, and also whether the facts relied on in the defense, on the supposition that they should be found true by them, made out a probable cause. It was the defendant's right to have the jury instructed in their duty by the opinion of the court upon the question of law. This was not done; on the contrary, it would seem that both the law and the fact were left, without any instruction from the judge, at the entire disposition of the jury."

able cause are admitted by the pleadings, the court must pass upon them; and if they are clearly established by uncontroverted testimony or by stipulation, and in the opinion of the court they make out probable cause, he may properly order a nonsuit.' Where the testimony of the plaintiff discloses probable cause, or no probable cause, for his arrest, it is the duty of the court to so instruct the jury, and direct a verdict for the defendant or plaintiff, as the case may be. But if the facts are controverted, and the evidence is conflicting, the case must go to the jury.3

4

Whether the prosecutor acted bona fide upon the opinion of his counsel, believing he had a good cause of action, is a question for the jury; or whether the statement to the counsel was a full and fair statement; or whether the attorney was a proper adviser."

The question of malice is always one for the jury."

1 Masten v. Deyo, 2 Wend. 424; Emerson v. Skaggs, 52 Cal. 246.

2 Sutton v. Anderson, 103 Pa. St. 151; Parli v. Reed, 30 Kan. 534.

Masten v. Deyo, 2 Wend. 424; Crabtree v. Horton, 4 Munf. 59; Maddox v. Jackson, 4 Munf. 462; Hardaway e. Manson, 2 Munf. 230; Heyne v. Blair, 62 N. Y. 19.

Ravenga v. Mackintosh, 2 Barn. & C. 693; Hall v. Suydam, 6 Barb. 83; Potter v. Seale, 8 Čal. 217; Thompson v. Lumley, 50 How. Pr. 108; Anderson v. Friend, 71 Ill. 475.

McLeod v. McLeod, 73 Ala. 42. Watt v. Corey, 76 Me. 87. Mitchell v. Jenkins, 5 Barn. & Adol. 588; Ritchey v. Davis, 11 Iowa, 124; Newell v. Downs, Blackf. 523; Potter v. Seale, 8 Cal. 217; Cloon v. Gerry, 13 Gray, 201; Levy v. Brannan, 39 Cal. 485; Von Latham v. Libby, 38 Barb. 339; Besson v. Southard, 10 N. Y. 236; Masten v. Deyo, 2 Wend. 424; Closson v. Staples, 42 Vt. 209; 1 Am. Rep. 316; Wagstaff v. Shippel, 27 Kan. 450; Gee v. Culver, 12 Or. 228. It must be left to the jury in every case. In Mitchell v. Jenkins, 5 Barn. & Adol. 588, a credi.

no

tor had caused his debtor to be arrested for the sum of forty-five pounds, knowing that there was a set-off to the amount of sixteen pounds. He instructed the officer who made the arrest to allow the set-off in case the debtor would settle. The debtor subsequently brought an action for malicious prosecution. On the trial, Taunton, J., ruled that there was probable cause, and that there was malice in law, as the act of causing the plaintiff's arrest for a larger sum than he owed was wrongful, and he told the jury that the only question for them was the amount of damages. On appeal, a new trial was granted: "Malice," said Denman, C. J., “may, in some instances, be fairly inferred by the jury from the arrest itself, and the circumstances under which it is made, without any other proof. They, however, are to decide, as a matter of fact, whether there be malice or not. I have always understood the question of reasonable or probable cause on the facts found to be a question for the opinion of the court, and malice to be altogether a question for the jury." Said Parke, J., in the same case:

ILLUSTRATIONS. One S. daubed defendant's fence with paint, and told his wife that it had been done by plaintiff and her sister. He afterwards told defendant that it was not done by them, but by himself. Subsequently, defendant procured a warrant against plaintiff and her sister for malicious mischief, and they were tried before a police justice and the complaint dismissed. It appeared that defendant had agreed to settle the matter with S. Held, that it was a question for the jury whether defendant had probable cause for procuring the warrant: Foote v. Milbier, 1 Thomp. & C. 456; 45 How. Pr. 38. N., a school-teacher, procured from F., one of the trustees, an order upon the district collector, upon the express agreement that it should not be presented until signed by the other trustees. N., without procuring the other signatures, got the money from the collector by falsely stating that he had shown the order to another trustee, who said that it was all right. Thereupon F. procured N.'s arrest for obtaining money by false pretenses. In an action by N. for malicious prosecution, held, that whether or not there was a reasonable cause for procuring the arrest was a question for the jury: Neil v. Thorn, 17 Hun, 144. A, while attending a fair, left his buggy near the fair-grounds, and upon searching for it could not find it, and was told by persons on the ground that B had hitched his horse to it and driven off, and that B was a hard case. A afterwards made numerous inquiries for the buggy, but could hear nothing of it, and was then advised by counsel that the act of B was larceny, and he should procure a warrant for B's arrest. The warrant was obtained and placed in the hands of a constable. A was afterwards told that B denied having taken the buggy, and claimed that it was taken by a servant of his (B's) brother. A afterwards found the buggy on the fair-grounds. Held, that the question of probable cause was for the jury: Lawyer v. Loomis, 3 Thomp. & C. 393.

§ 1103. Evidence.

Whatever was admissible to de

feat the action in which the arrest was made is likewise

"When there is no reasonable or probable cause, it is for the jury to infer malice from the facts found. That is a question in all cases for their consideration, and it having in this instance been withdrawn from them, it is impossible to say whether they might or might not have come to the conclusion that the arrest was malicious. It was for them to decide it, and not for the judge. I can conceive a case where there are mutual accounts be

tween parties, and where an arrest for the whole sum claimed by the plaintiff would not be malicious. For example, the plaintiff might know that the set-off was open to dispute, and that there was reasonable ground for disputing it. In that case, though it might afterwards appear that the set-off did exist, the arrest would not be malicious." Patteson and Taunton, JJ., concurred.

admissible on the question of the right of the party arrested to recover for the injury sustained.' The plaintiff need not give in evidence all the evidence given before the magistrate. He must prove his case, but this does not necessarily require him to show everything that took place on the former proceedings.2 The finding of the magistrate on the preliminary examination introduced as evidence of probable cause cannot be impeached by showing that he acted unfairly or improperly in the examination. The magistrate may testify as to what the testimony before him on the preliminary examination was.* The official stenographer of the court may read from his notes the testimony of a witness taken at the trial of the indictment, and who was beyond the jurisdiction of the trial court, for the purpose of showing want of probable cause. It is not competent to call one who acted as juror on the trial, and ask him if the jury deliberated upon the charge, and on what grounds."

On the question of malice and probable cause, the following are relevant and admissible, viz.: Statements made by third persons to the defendant;' what was testified to upon the criminal trial, though such testimony was there

Bacon v. Towne, 4 Cush. 217. A was arrested for larceny at the instance of B, and on being discharged, brought an action for malicious prosecution against him. It was held that A may prove that B was present when two witnesses swore before a magistrate to facts showing that the larceny was not committed by A; and the record of proceedings before the magistrate need not be produced: Watt v. Greenlee, 2 Hawks, 186.

Bacon r. Towne, 4 Cush. 217. Bacon v. Towne, 4 Cush. 217. The answer of the justice who issued the warrant of arrest to a question asked by the defendant as to what he (the justice) thought of the plaintiff, and whether he was not subject to the vagrant law, is admissible in evidence

as a part of the res gesta: Williams v. Vanmeter, 8 Mo. 339; 41 Am. Dec. 644. In an action for malicious prosecution, the evidence showed that the prosecution was dismissed by the justice. The defendant cannot introduce evidence as to what he himself stated at the time the prisoner. was discharged as the reason of the failure in the prosecution: McCausland v. Wonderly, 56 Ill. 410.

Brown v. Willoughby, 5 Col. 1. 6 Scott v. Shelor, 28 Gratt. 891. A grand juryman was asked whether the evidence of defendant, then the prosecuting witness, was considered by the jury. It was held improper, as the juryman could not tell what the jury considered, but only what they said: Parkhurst v. Masteller, 57 Iowa, 474. 7 French v. Smith, 4 Vt. 363; 24 Am. Dec. 616.