persons and things, would destroy that division of labor and responsibility by which alone business can be safely conducted, and would establish an industrial communism, by which private enterprise and private caution would be extinguished. Nothing can be effectually guarded when everything is to be guarded by everybody. No machinery could be properly worked if every passer-by were compelled, by the terror of a criminal prosecution, to rush in and adjust anything that might appear to him to be wrong, or which was wrong, no matter how it might happen to appear. By this wild and irresponsible interference even the simplest forms of machinery would be speedily destroyed": Id., sec. 80. And upon the subject of omission to give warning of danger, the same author says: "The test here is, Is such notice part of an express duty with which the defendant is exclusively charged? If so, he is responsible for injury which is the regular and natural result of his omission; but if not so bound, he is not so responsible": Id., sec. 81.

These rules of the common law are not inconsistent with our statute, but are in harmony therewith, as we construe it. As we understand both the common law and the statute, there can be no criminal negligence or carelessness by omission to act, unless it was the especial duty of the party to perform the act omitted. Negligence or carelessness by omission presupposes duty to perform the act omitted, and cannot, in law, be imputed except upon the predicate of duty.

In this case the evidence is uncontradicted and clear that appellants did not do any act or omit to do any legal duty, with reference to the deceased child. In law they are no more responsible for the death of the child than any other person who was present and witnessed the accident. They were strangers to the transaction in contemplation of the law, because they were not charged with any duty with respect to it. We are of the opinion that the judgment of conviction is contrary to the law and the evidence, and therefore said judgment is reversed, and the cause is remanded.

NEGLIGENT HOMICIDE. – Where it appeared that the prisoner was in his door-yard quarreling with a neighbor, waving a pistol, and threatening to shoot, though not apparently intending so to do, and his wife, coming out, begged him to come in, and was shot, and in her dying declaration stated that she was accidentally shot while trying to take the pistol from her husband, under the Texas Penal Code the defendant was entitled to an instruction as to the law of negligent homicide: Howard v. State, 25 Tex. App. 686.

Where deceased met death in consequence of the collision of a vehicle driven by the defendants with that in which the deceased was riding, the criminal responsibility of the defendants is estimated, not so much by the question as to whether they were guilty of allowing their team to run, as the question whether their negligence and wanton recklessness was the cause directly of the collision: Belk v. People, 125 Ill. 584.

MEDIS AND HILL v. STATE.

[27 TEXAS APPEALS, 194.]

CRIMINAL LAW. - JOINT VERDICT AGAINST JOINT OFFENDERS must assess a separate penalty against each, to be valid. CRIMINAL LAW-SODOMY ACCOMPLICE. Where in sodomy the prosecuting witness consents to the act, he is an accomplice whose testimony must be corroborated; and where the evidence is such as to leave the question of consent in doubt, the jury must be instructed that if they find that he consented they must then find that he was corroborated, in order to convict.

McLemore and Campbell, and S. T. Fontaine, for the appel

lants.

W. L. Davidson, assistant attorney-general, for the state.

HURT, J. The appellants were jointly indicted, tried, and convicted of sodomy, the verdict of the jury being: "We, the jury, find Charles Medis and Ed Hill guilty as charged of sodomy, and assess the punishment at ten years' confinement in the penitentiary."

Appellants contend by their counsel that this is not a good or legal verdict. This proposition is now well settled in favor of appellants: Flynn v. State, 8 Tex. App. 398; Sterling v. State, 25 Id. 716; Cunningham v. State, 26 Id. 83; Calico v. State, 4 Ark. 430; Straughan v. State, 16 Ark. 37.

Appellants were charged with committing the act upon one Milton Werner. Upon the trial, Werner was introduced as a witness for the state, and his testimony was relied on for a conviction. The court failed to give instructions to the jury relating to the necessity of corroborating said witness, counsel for appellants contending that Werner was consenting, and was therefore an accomplice. Upon this subject, says Bishop: "When this offense is committed on a non-consenting person who becomes a witness, it appears that his early complaint may be shown in corroboration, the same as those of the injured woman in rape. If such person had con

sented, he would be an accomplice whose testimony would for this reason need corroboration": 2 Bishop's Crim. Law, 1018. Werner was evidently consenting; but if the evidence. should leave this in doubt, it would then become a question for the jury, and not the court, to determine, under the proper instructions, whether the person was or was not consenting; and the jury should in such a case be instructed that if they found that he was consenting, then they must find that he was corroborated.

Reversed and remanded.

CRIMINAL EVIDENCE-ACCOMPLICES. — One cannot be convicted upon the testimony of an accomplice, unless corroborated by other evidence tending to connect defendant with the crime committed: Blakeley v. State, 24 Tex. App. 616; 5 Am. St. Rep. 912, and note 917; People v. Kraker, 72 Cal. 459; 1 Am. St. Rep. 65, and note 67. Compare People v. Dow, 64 Mich. 717; 8 Am. St. Rep. 873, and note 876.

DEMPSEY V. STATE.

127 TEXAS APPEALS, 2€9.]

MALICIOUS PROSECUTION — INFORMATION. — In an action for malicious prose

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cution under article 273, Penal Code of Texas, it is not necessary to allege in the information that the alleged malicious prosecution had ended before the information was presented.

MALICIOUS PROSECUTION - MALICE. To convict for malicious prosecution, the prosecution alleged to have been malicious must be proved to have been actuated by malice.

MALICIOUS PROSECUTION. LEGAL MALICE is an unlawful act done willfully and purposely to the injury of another. MALICIOUS PROSECUTION - MALICE PROBABLE CAUSE. To convict for malicious prosecution, it must be proved that there was legal malice actuating the wrong done, and also want of probable cause for instituting the alleged malicious prosecution; and though it was actuated by malice, still defendant cannot be convicted if the proof shows that he had probable cause for instituting the prosecution. MALICIOUS PROSECUTION. - PROBABLE CAUSE is the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the offense for which he was prosecuted. MALICIOUS PROSECUTION EVIDENCE. In criminal malicious prosecution based upon a discharge from a criminal charge, the evidence of the justice before whom the first trial was had, that the evidence there was not sufficient to sustain the charge, is inadmissible, and calculated to injure defendant.

CONVICTION for malicious prosecution. The opinion states the facts.

AM. ST. REP.. VOL. XI. -13

J. D. Owen, for the appellant.

W. L. Davidson, assistant attorney-general, for the state.

WILLSON, J. This prosecution is under article 273 of the Penal Code, which reads: "If any person in this state, for the purpose of extorting money from another, or the payment or security of a debt due him by such other person, or with intent to vex, harass, or injure such person, shall institute, or cause to be instituted, any criminal prosecution against such other person, he shall be deemed guilty of malicious prosecution, and upon conviction, shall be fined not less than one hundred nor more than one thousand dollars, or be imprisoned in the county jail not less than one month nor more than one year." This article of the Penal Code is an addition to the original code made in revising, and this is the first conviction thereunder which has been before this court.

In the information the charge is alleged as follows: "Did then and there unlawfully, for the purpose and with the intent to vex, harass, and injure one Thomas Kelley, willfully institute, and cause to be instituted, against the said Thomas Kelly, in justice's court of precinct number one of Jackson County, Texas, a criminal prosecution, as follows, to wit: The State of Texas v. Thomas Kelley, number eighty-three,' charging the said Thomas Kelley, by complaint made before H. T. Chivers, county attorney of said county, which complaint was filed by William Payson, the justice of the peace in and for said precinct number one, with unlawfully and willfully tying and staking out, and causing to be tied and staked out, to graze within the inclosed lands of the said Daniel Dempsey, a horse."

We are of the opinion that the information is a good one. It follows the words of the statute, and is sufficiently specific. The specific exception made to it, that it does not aver that the prosecution against Kelley had ended before the presentment of the information, is not well taken, as the statute makes no such requirement. In a civil suit for damages for malicious prosecution, it is essential to allege and prove that the alleged malicious prosecution had terminated before the institution of the suit, because in such case it cannot be known whether or not there was any injury until there has been an acquittal of the charge, nor what the extent of the injury might be. And a civil suit is not maintainable at all if there has been a conviction upon the criminal charge: Glasgow v.

Owen, 69 Tex. 167; McManus v. Wallis, 52 Id. 535; Usher v. Skidmore, 28 Id. 617; 2 Greenl. Ev., sec. 452; Cooley on Torts, sec. 186. But it does not appear to us that the above-stated rule is applicable in the case of a criminal prosecution under article 273 of our Penal Code. In such case we think it is immaterial whether or not the alleged malicious prosecution had terminated at the time of the filing of the indictment or information. The reason for the rule in a civil suit does not exist in the criminal case, and it does not seem to be contemplated by said article that it shall exist in such case.

There are certain rules, however, governing in a civil suit for malicious prosecution, which, in our opinion, obtain in a criminal prosecution such as the one before us. These rules are not expressly declared or required to be observed by article 273, but they are, nevertheless, within the intention of that article. The first of these rules is, that the prosecution alleged to have been malicious must be proved to have been actuated by malice. Legal malice is defined as follows: "Any unlawful act done willfully and purposely, to the injury of another, is, as against that person, malicious." This wrong motive, when it is shown to exist, coupled with a wrongful act, willfully done to the injury of another, constitutes legal malice: Ramsey v. Arrott, 64 Tex. 322; Glasgow v. Owen, supra.

The second rule is, that there must not only be legal malice actuating the wrong done, but there must be a want of probable cause for instituting, or causing to be instituted, the alleged malicious prosecution, and the evidence on the trial must show such want of probable cause. "By probable cause is meant the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the offense for which he was prosecuted": Ramsey v. Arrott, supra; Glasgow v. Owen, supra; Gabel v. Weisensee, 49 Tex. 131.

In this prosecution, therefore, as we construe the statute creating this offense, it was essential for the state to prove,1. That the defendant instituted, or caused to be instituted, against Kelley the prosecution named in the information, being actuated thereto by malice, with the purpose and intent to vex, harass, and injure said Kelley; 2. That he instituted, or caused to be instituted, said prosecution without probable cause, as that term has been above defined.

It is certainly not the meaning and intent of the statute to