was alleged, on the one side, that a felony | we say to you that March had no probable had been committed, and on the other, that the whole matter was a false conspiracy, supported by perjury. The court would leave it to the jury on the whole evidence to determine how the truth was: if, as alleged on behalf of the defendant, a felony had been committed, plaintiff could not recover; if, on the other hand, it were all false, the plaintiff should recover, and the jury were the sole judges of what damages should be given.' We are not able to perceive any error in this part of the charge. The court states to the jury the point in controversy arising out of the testimony, viz., that the defendant contends that the plaintiff is guilty of the felony charged, and the plaintiff that she is innocent, and that the charge is got up by a conspiracy by the defendant and others, and is supported by perjury. Whether this be so or not, the court very properly says, is a question for the determination of the jury, depending upon the facts proven, and the fair deductions to be drawn from them; and the proposition is most unquestionably true that if the plaintiff were guilty of the felony charged, she had no cause of action, but that if the charge originated in a conspiracy, and was supported by perjury, she was entitled to a verdict, and to such damages as the jury, in their discretion, might think proper to allow. If it resulted as a necessary consequence, from this part of the charge, that the plaintiff, unless she were guilty of the felony, was, in the opinion of the court, entitled to a verdict, it would be erroneous. But no such consequence follows, because the court expressly says in that part of the charge immediately preceding, that a party might have probable cause to institute a prosecution for felony against an innocent person, and in that case no action could be maintained.''

And in Leahey v. March, 155 Pa. 458, 26 Atl. 701, the court said: "What facts and circumstances will amount to probable cause is a question of law; whether they exist in a particular case is a question of fact; where the facts are in controversy, the subject must be submitted to the jury, in which event it is the duty of the court to instruct them what facts will constitute probable cause, and submit to them only the question of such facts, Dietz v. Langfitt, 63 Pa. 241. Following this well and clearly defined principle, the learned judge in this case instructed the jury that, to entitle plaintiff to recover, he must show that the prosecution was instituted without cause and with malice, and, after defining malice, he says: 'We say to you that if the account given by Leahey (appellee) is a true one, if you believe what he says as to the agreement and the manner and terms upon which he regained the possession of the four notes, there was no larceny of the notes; that he was entitled to their possession, and his taking them off the desk was not a felonious taking. In other words,

cause to suppose the taking of the notes was a theft of them, nor that it was other than Leahey had a right to do under the agreement.' The last sentence is made the first assignment of error, and it is contended that it amounted to a binding instruction to find for plaintiff. The malicious prosecution for which this action was brought arose from a transaction in reference to four promissory notes drawn by the Altoona Fuel & Ice Company to the order of John Flannigan; and in regard to the appellee's account of the transaction the learned judge said: "The theory of the plaintiff's complaint is that on the agree ment the four notes were placed in March's (appellant's) hands as collateral security for a loan on them of 50 per cent of the amount of the notes, or for the return of the $200, and that as March could not raise the sum of 50 per cent of the notes, he was therefore entitled to the return of the $200; and as Leahey, at March's request, actually returned the $200 by his check, he, Leahey, was entitled to have again the four notes. He contends that his picking them off the desk where March had laid them for him was not an offense at all; that it was only carrying out the terms of the agreement; that, as he had paid back the $200, the notes were redeemed from the pledge; and, in short, they were his notes again and his own property. If this narration of Leahey is correct, then the notes were Leahey's again, and he had a right to take them.' It is manifest that if appellee owned the notes and had a right to take them, there was no probable cause for his arrest for stealing them, and when the learned trial judge used the words in question, in connection with that which preceded, he simply indicated to the jury that if those facts were true appellant had no probable cause to suppose the appellee in taking them was guilty of a theft. It is claimed that he intended them as a binding instruction. Clearly they were not so, and it is equally clear that the jury could not have so understood them."

And an instruction that if the jury shall believe from the evidence in the case that defendant, at the time complained of by the plaintiff, had received information to the effect that a person of plaintiff's description had stolen a watch in a certain city, and that said information was such a reasonably prudent person would act upon, and that defendant, from such information, had reasonable grounds to believe, and in good faith did believe, that plaintiff was the thief, then defendant had probable cause for procuring her arrest and instituting a prosecution for the theft,-was held in Keiner v. Collins, Ky., 171 S. W. 399, to properly submit the question of probable cause to the jury.

bb. -held improper.

But it is error to instruct the jury: "If the facts are disputed, it is for you to deter

mine whether or not there was probable cause." Beihofer v. Loeffert, 159 Pa. 365, 28 Atl. 217.

could, as to him, be no probable cause for setting the prosecution on foot. But the proposed instruction is in another respect objectionable. It sought to submit to the jury the question of the existence of probable cause. To inquire whether or not such facts as were known to the defendant were sufficient to warrant him as a reasonable man in the belief that the plaintiff was

And an instruction that "the length of time that elapsed between the alleged discovery of the forgery by the defendant and the date of the arrest may be considered by the jury in determining the question of malice and the want of probable cause," was erroneous as leaving it to the jury to deter-guilty is to inquire not only what particular mine not only the existence of the facts, but to say whether they amounted to probable cause. Costello v. Knight, 4 Mackey,

65.

So it was error to charge the jury: "If you are satisfied from the evidence that the defendant procured the arrest and imprisonment of plaintiff, as alleged in the complaint herein, and that the same was done with malice, and without probable cause therefor, then you will find for the plaintiff." "If, on the other hand, you find that no malice or want of probable cause has been shown on the part of the defendants, then your verdict will be in favor of the defendants." Fulton v. Onesti, 66 Cal. 575, 6 Pac. 491.

An instruction given by the court stating "that the plaintiff's discharge by the examining magistrate is prima facie evidence of the want of probable cause for the charge, and the burden is upon the defendant to prove to the satisfaction of the jury the existence of probable cause," was objectionable for the same reason. Harkrader v. Moore, 44 Cal. 144. If the court was of the opinion that the discharge of the plaintiff, under the undisputed circumstances appearing, established the want of probable cause, the jury should have been so instructed; if, however, there were other and disputed facts, the ascertainment of the truth of which by the jury in the one way or in the other would affect the question of probable cause, the disputed facts should have been called to their attention, and the legal effect of those disputed facts, when found either way, as bearing upon the question of probable cause, should have been explained to them.

facts were known to him, but also, and at the same time, to determine their legal sufficiency or insufficiency as constituting probable cause. The authorities are substantially uniform that the question of probable cause, however presented, is & question of law, and therefore one to be determined by the court. When the facts in reference to the alleged probable cause are admitted, or established beyond controversy, then the determination of their legal effect is absolute, and the jury are to be told that there was or was not probable cause, as the case may be. When, however, the facts are controverted, and the evidence is conflicting, then the determination of their legal effect by the court is necessarily hypothetical, and the jury are to be told that if they find the facts in a designated way, then that such facts, when so found, do or do not amount to probable cause. But in neither case are the jury to determine whether or not the established facts do or do not amount to probable cause."

In Emerson v. Skaggs, 52 Cal. 246, the trial court instructed the jury as follows: "Whether there was probable cause for the prosecution against Emerson is a mixed question of law and fact, and I charge you that the evidence offered for the defendant, even if accepted as true, does not establish probable cause for the prosecution. If all the statements of defendant and his witnesses which relate to the relations between Skaggs and Emerson and between Skaggs and the other parties arrested upon his complaint. and all the acts of hostility testified to, and the testimony in relation to communications made to Skaggs, and all the actions of Emerson and those who were arrested A requested instruction that if the jury with him, be true, as stated by said witbelieved from the evidence "that at the time nesses, still they do not amount to probable of the alleged prosecution, the facts of cause, and did not justify the arrest of the which the defendant, Moore, then had knowl- plaintiff. I charge you, in plain terms, that edge, were sufficient to warrant a reasonable if all the evidence offered by the defense man in the belief that the alleged charge in this action be true, it does not establish was true, the plaintiff cannot recover in this probable cause for the arrest of plaintiff." action," was properly refused as an attempt And the appellate court, sustaining defendto submit to the jury the question of the ant's exception thereto, said: "It is not existence of probable cause. Ibid. The error for the trial court to instruct the jury court said: "This instruction as requested in an action for malicious prosecution, that, was obnoxious to the same objection as the if certain facts are proved, there was or last, in that it omitted all reference to the was not probable cause for the prosecution actual state of mind or belief of the defend-alleged to have been malicious. On the conant at the time; though the facts or circumstances of which he knew or was informed 'were sufficient to warrant a reasonable man in the belief that the alleged charge was true,' still the defendant may not, in fact, have believed the charge to be true; and if he did not so believe, there'

trary, such an instruction is eminently proper, and it is error to leave it to the jury to determine whether the facts and circumstances proved do or do not establish the want of probable cause. Bulkeley v. Keteltas, 6 N. Y. 387; Grant v. Moore, 29 Cal. 644. Where there is no dispute about

the facts proved by plaintiff, and it clearly | appears to the judge that the facts fail to establish a want of probable cause, he may grant a nonsuit, or direct a verdict in favor of defendant. In this action the burden is on the plaintiff to show affirmatively that there was a want of probable cause. 29 Cal. 655. This being made out prima facie by plaintiff, it is for defendant to overcome the plaintiff's case by disproving the facts sought to be established by him, or by proving other facts which establish probable cause. But the court is not authorized, in its instructions, to assume the existence of any fact where there is a conflict in the evidence in respect to it, or its nonexistence where there is evidence tending to prove it. It is not necessary to point out specifically the facts which the evidence introduced by defendant tended to prove, and which, if proved to the satisfaction of the jury, would have established probable cause. It is enough to say that, in our opinion, the court below should have specified those facts in its instructions, leaving it to the jury to determine whether they were established or not."

It was error to instruct the jury that "to authorize a recovery in this class of cases, it must not only appear that the defendant was actuated by malice, but the jury must further believe from the testimony that the defendant had no probable cause or no reasonable grounds to believe the plaintiff was guilty of the offense charged against him; and the court further instructs the jury that probable cause means a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a reasonably cautious man to believe that the person accused is guilty of the offense charged." Bell v. Keepers, 37 Kan. 64, 14 Pac. 542.

court, and not a question of fact to be found by the jury. True, if the facts upon which probable cause is to be founded are in dispute, the court may submit to the jury the questions of fact; but even in that case, the instructions must state what facts, when found by the jury, will be sufficient to establish probable cause. The relations of the parties, their rights and interests in the property in dispute, being fixed by the written contract, no question then of probable cause was in dispute, and the court ought to have instructed the jury as to whether or not plaintiff had established the want of probable cause. Justice Brewer held in Parli v. Reed, 30 Kan. 534, 2 Pac. 635: The court passes upon the law. It is its province to say what constitutes probable cause, for that is a matter of law.”

In Driggs v. Burton, 44 Vt. 124, the charge, although stating correctly what in law would constitute probable cause, was erroneous in that it submitted to the jury to decide not only upon the existence of the facts, but whether upon the facts they should find to have existed, there was probable cause as defined by the court.

In Cottrell v. Cottrell, 126 Ind. 181, 25 N. E. 905, the court said: "This brings us to instruction No. 6, given by the court to the jury. By this instruction the jury were told, among other things, as follows: 'If, on the other hand, when the defendant inquired for the children, if so he did, he was informed in good faith by the mother that she had the children, and if they wished to return with him they could do so, but if they did not he would have to walk over her dead body to get them, this is a fact you may consider as tending to show want of probable cause.' The instruction was erroneous. It is well-settled law that as to what constitutes probable cause is a question of law for the court. The well-considered case of Pennsylvania Co. v. Weddle, 100 Ind. 138, collates the authorities, and is a valuable discussion of the subject. court refers to certain isolated facts in this part of the instruction under consideration, and informs the jury that if they find the facts to which it refers to exist, they may consider such facts as tending to show want of probable cause, thus leaving it to the jury to say whether there was, or was not, probable cause. By this instruction the court delegated to the jury the right to determine the legal question of probable cause. The instruction gave the jury to understand that they might or might not, in their discretion, find the absence of the element of probable cause in case they found

The

In Bell v. Keepers, supra, the trial court also instructed the jury as follows: "11. To constitute probable cause for a prosecution, there must be such reasonable grounds for suspicion, supported by circumstances sufficiently strong, to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged.' '14. To authorize a recovery in this class of cases, it must not only appear that the defendant was actuated by malice, but the jury must further believe from the testimony that the defendant had no probable cause or no reasonable grounds to believe the plaintiff was guilty of the offense charged against him; and the court further instructs the jury that probable cause means a reasonable ground of suspicion, supported by circumstances sufficiently strong to war-that certain facts to which their attention rant a reasonably cautious man to believe that the person accused is guilty of the offense charged.'" The appellate court said: "By these instructions the court gave to the jury the question of probable cause, and left them to determine what facts would constitute probable cause. This was error. Probable cause, or the want thereof, is a question of law to be determined by the

was called had been proved. The instruction was calculated to mislead the jury; they might readily conclude therefrom that in case they found the facts named in the instructions, they might disregard all the other evidence in the case and find that there was an absence of probable cause. Had the court, in recognition of its right to determine as a question of law from the

facts proved the presence or absence of probable cause, informed the jury that the facts stated in the said instruction proved a want of probable cause, in disregard of the other evidence in the case, it would have been error, and the instruction as given was equally, if not more, objectionable. It was the duty of the court to state in hypothetical form the material facts which the evidence tended to establish, and give them positive instructions as to whether, upon the state of facts assumed, there was probable cause. And if there was conflicting evidence, it was the duty of the court to charge the law upon the conflicting theories. Pennsylvania Co. V. Weddle,

supra."

the other hand, to group the other facts within the evidence which it concludes, as a matter of law, to show the absence of probable cause, and then hypothetically state those facts to the jury, directing it that if it finds such group of facts proven by the evidence that it must find that there was not probable cause; and in no event must the court delegate to the jury the duty of determining for itself, as a matter of law, whether either groups of facts, or any other group that it may find to be proven by the evidence, shows probable cause. That said instruction [supra] violated this rule, and delegated to the jury the duty which the law imposes upon the court, there can be no question."

In Sunderbrand v. Shills, 82 N. J. L. 700, 82 Atl. 914, the court said: “At the conclusion of the case, after the court, in charging the jury, had stated the essential elements which go to make up the gravamen of such an action, the defendant preferred the following request: 'You must find that this arrest was made from malice; that there was no probable cause for the complaint, and that the defendant was fully discharged, in order to find a verdict in favor of the plaintiff, and against the defendant.' The court properly refused to so charge, since the request involved the submission to the jury of the question of probable cause. That question is always for the court in this class of cases. Where there are disputed facts, the actual facts must be determined by the jury, and it is for the court to instruct as to probable cause or the want of it according as the jury find the facts one way or the other."

The objection that the trial court therein delegated to the jury the right to determine the legal question of probable cause was sustained to the following instruction in Cleveland, C. C. & St. L. R. Co. v. Dixon, 51 Ind. App. 658, 96 N. E. 815: "In determining the question as to whether the defendant had probable cause to institute the prosecution in controversy, you are to consider only such facts and circumstances as the evidence shows were known to the defendant, or the agent of the defendant, at the time he made the affidavit charging the plaintiff with the crime of receiving certain stolen goods." The court said: "It is well settled by the authorities of this and the supreme court, that the question whether, under a given state of facts, probable cause existed, is a question of law for the court, and not a question of fact for the jury. 'What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any An instruction "that if the jury believe particular case is a pure question of fact. from the evidence that defendant had arThe former is exclusively for the court; the rested and imprisoned the plaintiff upon a latter for the jury. This subject must nec- charge of theft, and which was proved not essarily be submitted to the jury when the to be true upon a trial before the justices' facts are in controversy; the court instruct-court, then the law is for the plaintiff, and ing them what the law is." And citing a they must so find; provided there were not number of the earlier decisions in that probable grounds for so doing upon the jurisdiction the court continued: "These part of defendant," is erroneous because authorities make certain the duty of the it leaves the question whether there was court not to tell the jury that certain facts probable cause or not to be settled entirely may be considered by it in determining by the jury, without any directions as to whether probable cause existed, nor that, the principles of law arising from the eviif it find certain facts to exist, it may con- dence by which they should be governed in sider such facts in determining such ques- determining the question. Greenwade v. tion. The court must for itself search the Mills, 31 Miss. 464. The court said: "Since evidence on this question, and if there be no the leading case of Johnstone v. Sutton, conflict therein, it then becomes the court's it is universally agreed that the question of duty to say, as a matter of law, whether probable cause is a mixed proposition of there was or was not probable cause. If, law and fact; that whether the circumhowever, the evidence presents two con- stances alleged to constitute probable cause flicting theories on said question, one con- are sufficiently established is a matter of sistent with probable cause, and the other fact for the jury; but whether, supposing consistent with its absence, it then becomes them to be true as alleged, they amount to the duty of the court, on the one hand, a probable cause, is a question of law to be to group the facts within the evidence which decided by the court. Munns v. De Neit concludes, as a matter of law, show prob-mours, 3 Wash. C. C. 31, Fed. Cas. No. able cause, and then hypothetically state such group of facts to the jury, directing it that if it finds such group of facts proven by the evidence that it must [in that event] find that there was probable cause; and, on

9,926; Broad v. Ham, 5 Bing. N. C. 722, 8 Scott, 40, 8 L. J. C. P. N. S. 357; Pangburn v. Bull, 1 Wend. 345; Thomas v. Rouse, 2 Brev. 75. If the evidence in relation to essential facts be doubtful, or the testimony