And in Collins v. Manning, 32 N. Y. S. | jury, with a more specific direction as to R. 998, 10 N. Y. Supp. 658, where the the law. Panton v. Williams, 2 Q. B. 169, defendant's appeal prevailed "because the 1 Gale & D. 504, 10 L. J. Exch. N. S. trial judge took the question of probable 545." cause away from the jury, and decided it himself as a question of law,” the court said: "In a suit for malicious prosecution, where the facts are undisputed and admit of only one inference as to the existence of probable cause for the action of the prosecutor, the question is a question of law, to be determined by the court; but it becomes a question of fact, to be passed upon by the jury, when the facts are in dispute, or when, even though there may be no dispute as to the facts, they will reasonably sustain different inferences, leading some minds to the conclusion that there was, and others to the conclusion that there was not, probable cause for instituting the prosecution which is the subject of complaint."

"The law on this question is very | previous rulings in this state, we would not be warranted in reversing the judgement for nondirection on that account. But the refusal of the defendant's specific instruction, submitting the facts for the finding of the jury which the defendant claim

was error. There was evidence tending to prove every element contained in that instruction, and its unusual length was necessitated by the fact that the court excluded the record of the judgment, which set conclusively at rest many facts stated in that instruction. It is true that the plaintiff, having been discharged upon preliminary examination by the committing magistrate, could not, under the rule stated arguendo in Brant v. Higgins, 10 Mo. 728, and approved in Casperson v. Sproule, 39 Mo. 39, be nonsuited, but that discharge raised no question of fact. Its effect as evidence was a mere question of law, and whether certain other facts, if shown, had the legal effect to overcome plaintiff's prima facie case made out by his discharge on preliminary examination was a pure question of law. It is our duty to say whether the facts stated in defendant's instruction, if found by the jury to be true, constituted probable cause in law for the prosecution. We are of opinion that they did, and, hence, that the refusal of that instruction was prejudicial error."

said: simple, but its application to the individual case is often difficult. In Hill v. Palm, 38 Mo. 13, Judge Wagner thus states the law: The question of probable cause is composed of law and fact; it being for the jury to determine whether the circum-ed, if found, did constitute probable cause, stances alleged are true or not, and for the court to determine whether they amount to probable cause. It, therefore, falls with in the province of the jury to investigate the truth of the facts offered in evidence, and the justice of the inference to be drawn from such facts, whilst at the same time they receive the law from the court, that according as they find the facts proved or not proved, and the inferences warranted or not, there was reasonable and probable ground for the prosecution or the reverse; and this rule holds, however complicated or numerous the facts may be.' The learned judge, having thus stated what has unquestionably been the common-law rule all the time, immediately proceeds to make a seeming misapplication of it by saying, "The facts being contested, the court decided rightly in leaving the matter with the jury, with instructions as to what constitutes probable cause,' although in that case there was not even the vaguest legal definition of probable cause in any of the instructions given by the court, much less a submission to the jury for their finding of hypothetical facts, and the judgment of the court thereon as to whether such facts did or did not constitute probable cause. Ever since that decision was made, the courts of this state were engaged in a struggle to reconcile in some manner the seeming incongruity between the statement of the law in that case and its application to the point in judg ment. All the decided cases since, with the seeming exception of Meysenberg v. Engelke, infra, substantially concede this to be the rule. The question of probable cause on conceded facts is a pure question of law, and on disputed facts is likewise a question of law, based upon the hypothetical finding of the jury; yet, in the absence of a request by either party that the court do charge the jury what facts, if found, will or will not amount to probable cause, the omission of the court so to charge is mere nondirection, and hence not error. It is only on this theory that the judgments actually rendered in Callahan v. Caffarata, 39 Mo. 136; McGarry v. Missouri P. R. Co. 36 Mo. App. 340, and to some extent the first opinion in the case of Sharpe v. Johnston, 59 Mo. 557, can be supported. It is true that in Meysenberg v. Engelke, 18 Mo. App. 354, it was held error for the court to give an instruction on the question of probable cause in general terms, but as in that case the defendant did ask proper instructions based upon an hypothesis of facts which were refused, the point decided is not in conflict with what is herein said. The definition of probable cause as an abstract legal proposition is correctly stated both in the plaintiff's instruction and that of the defendant, and, under the

In Meysenberg v. Engelke, 18 Mo. App. 346, the court said: "This brings us to the next substantial question; namely. whether the case was properly put to the jury. It is often said in the books that, in actions for malicious prosecution, the question whether there was probable cause for instituting the prosecution is a question of law for the court. This proposition does not mean that it is the province of the court to decide upon conflicting evidence whether there was, or was not, such probable cause, but that where the evidence is not conflicting, or where the facts are conceded, it is the province of the court to tell the jury whether the facts do or do not afford such probable cause. Where, as in this case, the evidence as to the facts is conflicting, it is the duty of the court to tell the jury whether the hypothetical state of facts which the evidence of each party tends to prove does, or does not, if found by them to exist, afford such probable cause. As a general rule, it is error for the court in instructing the jury to submit a question of law to them for determination. And, hence, in an action for malicious prosecution, it is error for the court to submit to the jury generally the question whether there was, or was not, probable cause for the prosecution. This the court did in the present case. The instructions as here given authorized the jury to decide not only the effect in law of whatever knowledge the defendants may have had of the plaintiff's acts, but also the purely legal question, whether the acts of the plaintiff, thus coming to the knowledge of the defendants, were sufficient to constitute an indict

instructed the jury properly upon hypothetical facts submitted to them as to this question of probable cause, the general instructions submitted by the defendants as to what constitutes the obtaining of goods under false pretenses would have been properly refused. It is perceived that these two rulings present for determination a very peculiar question; namely this, the court, at the request of a party, submits a question of law to the jury. At the same time the court refuses additional instructions requested by such party, which instructions, if given, would assist the jury in determining this question of law. Is this an error of which the party asking these instructions can complain? We think it is. Obviously, the defendants cannot complain that the court upon their request left it to the jury to say generally whether this criminal prosecution for obtaining money and goods by false pretenses was instituted without probable cause. But, in order to enable them to determine this, it is necessary for them to have some understanding of the nature of the crime. This the defendant offered to supply by further instructions, and these instructions the court refused to give, at the same time giving no equivalent instructions. The jury were left to determine the question whether there was probable cause for instituting this prosecution upon less information as to the law than the defendants had; for they had the advice of men learned in the law as to the ingredients of this crime and the facts on which a prosecution for it may be sustained. It is perceived that the case was not put to the jury upon the defendants' theory. Their theory was that the jury was to decide the question of probable cause upon full directions as to the law; but the court committed it to them for decision, at the same time withholding from them full directions as to the law, which were submitted by the defendants. though the defendants' theory was erroneous, they are not concluded by a ruling of the court which submitted the cause to the jury upon a theory a great deal more erroneous."

able offense. We believe that no authorita- | induce such belief in the mind of a reasontive case can be found in which such an able and cautious man.' If the court had instruction, thus standing alone, has been sustained. In Sharpe v. Johnston, 59 Mo. 557, subsequent appeal in 76 Mo. 660, a similar definition of probable cause was given to the jury, but it was carefully guarded with hypotheses framed upon the evidence, informing the jury what facts, if proved to their satisfaction, would, or would not, be sufficient in law to establish the defense. Such is the general, and, beyond question, the only safe practice. The present record abounds in material for such explanatory hypotheses. The court might properly have supplied them of its own motion, but was not bound to do so. When not thus supplied, their absence must be fatal to the instruction given in general terms, because of its direct tendency to mislead the jury as to the nature of their duties, in submitting to them questions which it is not within their competency to determine. Said the supreme court of the District of Columbia in Tolman v. Phelps, 3 Mackey, 154: 'It is settled here and everywhere that it is for the court to tell the jury what facts would constitute probable cause. Substantially, the court only told the jury the rule of law, that probable cause was what a reasonable, intelligent man would think justified him in making the charge. It is not everybody who is supposed to know, neither prosecutor nor jury, what facts make up a crime, and, therefore, it is necessary that the court should tell the jury what facts justify a person in alleging crime. The court did not follow that course, but really gave the jury to suppose that they might examine all that testimony and make up their own minds as to what would constitute probable cause.' See also Hill v. Palm, 38 Mo. 22; Sharpe v. Johnston, 76 Mo. 660; 2 Greenl. Ev. 454. But for reasons which will be stated hereafter, this error is not such as to oblige us to reverse the judgment. The court refused to give to the jury several appropriate instructions submitted by the defendants, as to what were the ingredients of the offense of obtaining goods under false pretenses under the law of this state. The court, therefore, not only submitted to the jury upon the whole case the question whether there was or was not probable cause for instituting the criminal prosecution, but refused even to define to them the grounds on which such a prosecution may be lawfully instituted, although requested to do so by the defendants. By thus refusing to give the jury any special guide by which to determine this question of law, the error of submitting it to the jury became the more palpable and the more obviously prejudicial. Nor was this error cured by that part of the instruction given at the request of the defendant, 'that by the words, "probable cause," as used in the instructions of the court, is meant a belief Frissell v. Relfe, 9 Mo. 851, it by the defendants, or either of them, in the was held: "Want of probable cause, it is guilt of the accused, based upon circum- laid down in the books, is a question of stances sufficiently strong in themselves to law to be determined by the court, upon the

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And in Boogher v. Hough, 99 Mo. 183, 12 S. W. 524, the court said: "Probable cause is a question of fact or a mixed question of law and fact. The legal effect of the evidence offered to show the same is for the court, but the rule is, we think, well settled that the court cannot determine the question as a matter of law unless the facts, when taken as true, are insufficient to make out a case." This language is quoted in Clark v. Thompson, 160 Mo. 461, 61 S. W. 194, which seems to hold that it is sufficient for the court to leave the existence of the facts to the jury, with a definition of probable cause. And in

facts in evidence; but it has been usual in | this state to leave this, as well as the question of malice, to be determined by the jury."

And in Pinson v. Campbell, 124 Mo. App. 260, 101 S. W. 621, where it was contended that the trial court did not instruct the jury what facts, if proved, would constitute probable cause, the court said: "Counsel for defendant must have overlooked instruction No. 3, given for plaintiff, which reads as follows: 'The court instructs the jury that if they believe from the evidence that the defendant had probable cause to institute the criminal proceedings against the plaintiff, then the plaintiff cannot recover. Probable cause is defined to be a reasonable ground for suspicion, supported by circumstances and evidence sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense of which he is charged.' This instruction correctly defined the meaning of probable cause, and it was for the jury to determine from all the facts and circumstances shown in the case whether or not Campbell had probable cause to believe Pinson was guilty of the crime charged, at the time the several affidavits were made." And see to somewhat the same effect, Lindsay v. Bates, 223 Mo. 294, 122 S. W. 682; and Vansickle v. Brown, 68 Mo. 634.

In Ewing v. Sanford, 19 Ala. 605, the trial judge instructed the jury that they should determine, as reasonable men, from the evidence, whether there was or was not probable cause for the prosecution. It was objected that this left the question as to what amounts to probable cause to the jury, when it was a question of law. The court said: "Where the facts are ascertained and undisputed, the question whether they constituted probable cause would be a pure question of law, and in such case it would be erroneous for the court to refer such question to the jury. But where the facts are to be ascertained by the jury from the evidence which is doubtful or conflicting, the most that the court can do is to charge the jury hypothetically as to what would or would not constitute reasonable or probable cause for the prosecution; and in such case probable cause becomes a question for the jury. So that, in the language of Lord Ch. J. Denman, in the case of James v. Phelps, 11 Ad. & El. 508, 'the question whether there be or be not probable cause may be for the jury or not, according to the circumstances of the particular case. . We think the case before us presents a state of facts which warranted the judge in submitting the question to the jury, it being a mixed question of law and fact."

App. 525, 58 So. 796; Louisville & N. R. Co. v. Stephenson, 6 Ala. App. 578, 60 So. 490. And see to the effect that when it has been shown that an attachment was wrongfully sued out, it is for the jury to determine whether it was done maliciously and without probable cause. Goldstein v. Drysdale, 148 Ala. 486, 42 So. 744; Alsop v. Lidden, 130 Ala. 548, 30 So. 401; and Lunsford v. Dietrich, 93 Ala. 565, 30 Am. St. Rep. 79, 9 So. 308.

The doctrine of the earlier English and Canadian decisions on this question has been put somewhat in doubt, it seems, by the practice adopted by the courts in some of the later cases of submitting certain questions to the jury, upon whose answers to which the court declares as to existence or absence of probable cause. This practice has its origin, it appears, in the case of Abrath v. North Eastern R. Co. L. R. 11 Q. B. Div. 79, where Cave, J., left three questions to the jury: "(1) Did the defendants in prosecuting the plaintiff take reasonable care to inform themselves of the true state of the case? (2) Did they honestly believe the case which they laid before the magistrates? and (3) Were the defendants actuated by any indirect motive in preferring the charge against the plaintiff ?"

In Brown v. Hawkes [1891] 2 Q. B. 718, where similar questions were put to the jury, Mr. Justice Cave said: "I should, however, like to say that, in my judgment, the learned judge ought not to have left to the jury the question which he did leave to them as to the defendant having taken reasonable care to inform himself of the true facts of the case. The facts which the defendant proved before the magistrates were all of them true and undisputed, and the simple question for the judge was whether they showed an absence of reasonable and probable cause. If they did show such an absence, it was quite unnecessary to inquire whether the defendant took reasonable care to inform himself of the true facts. If they did establish the presence of reasonable and probable cause, it was not incumbent on the defendant to make any further inquiries. Lister v. Perryman, L. R. 4 H. L. 521, 39 L. J. Exch..N. S. 177, 23 L. T. N. S. 269, 19 Week. Rep. 9. As Lord Bramwell, then Baron Bramwell, remarked in that case, it might have been reasonable to make such inquiries, but it does not follow that it was unreasonable not to make them. It was sought to justify the putting of this question on the ground that a similar question was put in Abrath v. North Eastern R. Co. supra; but in that case the evidence on which the defendant acted in prosecuting the plaintiff was all false. I entertained some doubt whether it was right to put the In the same connection, see McLeod v. question even in Abrath v. North Eastern McLeod, 75 Ala. 483; O'Neal v. McKinna, R. Co. supra, where I put it ex majori 116 Ala. 606, 22 So. 905; Gulsby v. Louis- cautela; and it seems to me that, if such ville & N. R. Co. 167 Ala. 122, 52 So. 392; a question is to be put in every case, the Abingdon Mills v. Grogan, 167 Ala. 146, 52 result will be to transfer the decision of So. 596; Sloss-Sheffield Steel & I. Co. v. the question of what is reasonable and O'Neal, 169 Ala. 83, 52 So. 953; Birming-probable cause from the judge to the jury, ham R. Light & P. Co. v. Ellis, 5 Ala. except when the judge holds that there is