This is an action for damages against defendant for maliciously preferring and prosecuting a criminal charge of grand larceny in which the plaintiff was charged with stealing a certain lot of timber, the property of the defendant, of the value of $75, on which the plaintiff was arrested and tried before a magistrate and discharged, and the prosecution ended. The plaintiff, obtained judgment for $4,000, and the defendant appeals.
It appears from the evidence that the defendant is the owner.of a large landed estate, and the plaintiff was engaged in running a sawmill in the neighborhood; that a parol agreement was made between them by which the plaintiff was to have all or some of the cypress trees fit for lumber on an eighty-acre tract of the defendant to be paid for in lumber; • that plaintiff commenced cutting the cypress trees and delivered the greater part of the lumber to the defendant, in pursuance of the terms, when a disagreement seems to have arisen between them as to its terms, defendant contending that the plaintiff was only to have seventy-two cypress trees, and the plaintiff that he was to have all the cypress trees on the tract; the result was a lawsuit before a justice of the peace, in which the defendant recovered a small judgment against the plaintiff, and he appealed to the circuit court. Pending the appeal a survey was made of the defendant’s eighty-acre tract, and the fact was disclosed that some of the trees cut and for which she had charged in her account was not ón the land,- and she dismissed her suit.
The plaintiff, by his hired hands, continued cutting and hauling the cypress trees to his mill as before, and the defendant caused a notice tó be served upon him and his workmen to cease so doing, which notice he neglected or refused to obey, and thereupon she instituted a criminal proceeding by swearing out a warrant
It appears plainly from the evidence that there was no probable cause for the prosecution, and there was evidence tending to prove malice. Several objections are urged against the action of the court in admitting evidence for the plaintiff and rejecting evidence for the defendant; but upon a careful reading of the whole evidence, and a consideration of each of these objections, we find no reversible error in the rulings of the court in this behalf. The case was submitted to the jury on the following instructions:
At the request of the plaintiff: “ 1. If the jury believe from the evidence that the prosecution of the plaintiff before "W. G-. Lee, a justice of the peace, was without probable cause on the part of defendant, Fannie Millar, then you may infer that said prosecution was malicious, and if you so find you ought to return a verdict for the plaintiff. By ‘probable cause’ is meant a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offense with which he is charged. ‘Malice’ means a wrongful act done intentionally without legal justification or excuse.
“2. If you believe from the evidence that the defendant wilfully, maliciously and without probable cause did swear to and make affidavit before W. Q-. Lee, a justice of the peace, and did falsely and maliciously and without probable cause charge the plaintiff with having committed grand larceny by feloniously stealing, taking and carrying away a quantity of her
“ 3. The issue for the jury to try in this case is, not the guilt or innocence of James Fugate of the crime alleged against him in the affidavit, but the issue is, whether from the facts and circumstances given in •evidence, the defendant acted maliciously and without probable cause; and on this issue you are further instructed by the court, that the discharge of the plaintiff, by W. Gr. Lee, the examining justice, is prima facie ■evidence that the prosecution was without probable cause, but not conclusive proof of that fact.
“4. If the jury find from the evidence that the ■defendant in said prosecution was actuated with hostile, angry and vindictive motives against the plaintiff, and that said prosecution was without probable cause, as •defined in instruction, numbered 1, on the part of the plaintiff, then, in that event, you should find a verdict for the plaintiff.
“ 5. The court further instructs you that the defendant cannot shield herself under the advice of ■counsel, unless she shows that she communicated to •such counsel all the facts bearing upon the guilt ‘or innocence of the accused, which she knew or by reason-able diligence could have ascertained.
“ 6. Even if the jury should find from the evidence that the defendant, prior to such prosecution, communicated to counsel, learned in the law, all the
“The court instructs you that, if you should find the issues for the plaintiff, you may take into consideration, in estimating his damages, and award to plaintiff the money expended by him in defending against the criminal charge preferred against him by defendant; also the pecuniary loss he has sustained, if any, for loss of time preparing and making his defense thereto; also such sum as will compensate him for mental anxiety occasioned by reason of said charge, and for mental . suffering occasioned by said arrest, if you believe such was the case, together with such exemplary damages as you may from the evidence believe the defendant should be punished with, taking also into consideration her personal ability, not exceeding the amount sued for in the petition.
“The court instructs the jury that, if you believe from the evidence that in 1886 defendant contracted with plaintiff to sell and did sell all the cypress timber standing and growing on the west half of the southeast quarter of section 30, township 25, range 16, for the .sum of $75, to be paid for in sawed lumber at $12.50 per thousand feet, then, in that event, the defendant had no probe ble cause for commencing said criminal prosecution.”
At the request of the defendant’: “1. The
“2. The term 1 malice’ as used in law is defined to be a wrongful act done wilfully, without just cause or excuse; that probable cause is a belief in the guilt of the accused, based upon circumstances sufficiently strong to induce such belief in the mind of a reasonable and cautious man.
“3. Plaintiff cannot recover in this action, unless you shall be satisfied from the evidence, not only that there was no probable cause for the prosecution of the said Fugate, but that the defendant, Fannie Millar, in making the affidavit, acted with malice; 'that, if from the testimony you shall find that there was probable cause, no malice, however distictly proven, will make the defendant liable.
“4. If you shall believe from the evidence that the defendant, Fannie Millar, before making the affidavit upon which the plaintiff was arrested, consulted in good faith with one or more attorneys at law with a view to obtain their advice as to the liability of the
“5. Although you may find the evidence that upon an examination by the committing magistrate of the complaint made against the said James Eugate, as stated in the first instruction, Eugate was discharged, yet, if from the evidence in this cause, you' shall believe that at the time the said Eannie Millar made the affidavit against him there was probable cause for his arrest and prosecution, then plaintiff cannot-recover, and your verdict must be for the defendant.”'
By the court on its own motion: “1. The question for the jury to determine in this cause is not whether James Eugate was guilty or innocent of the charge made against him in the affidavit of Fannie Millar, but whether, from the facts and circumstances given in evidence in this trial, Eannie Millar acted maliciously and without probable cause in making the affidavit and causing Fugate’s arrest.
“ Now if you shall believe from the evidence in this cause that Eannie Millar sold to Eugate seventy-two cypress trees growing on the land, and that Eugate cut and carried off said number; that she then had notice
I. The court seems to have given all the instructions except one that the defendant asked for, and that one was properly refused because everything it contained essential to the defense was given in other instructions. The second paragraph containing a definition of grand and petit larceny shed no additional light on the issues submitted, and was not called for by thé evidence in the case. The affidavit of the defendant contained an unequivocal charge of grand larceny.
II. The first instruction given for the plaintiff was evidently copied from instructions given for the plaintiff in Sharpe v. Johnston, 59 Mo. 557; and when read in connection w \th the instructions given for the defendant it appears that while the jury were advised that an inference of malice might be made from the want of probable cause, yet it was simply one of fact, not conclusive, but an allowable inference to be weighed with all the other facts and circumstances in the case, from which they must find malice affirmatively as an independent fact before the plaintiff could recover. When the instructions are considered as a whole in the light of all the facts and circumstances in
III. It is not seen how the fourth instruction which predicated a right of recovery upon express malice and want of probable cause could have injuriously affected the defendant’s case, and there was evidence upon which that and the sixth instruction for the plaintiff might well have been based, in all the facts and circumstances of the case.
IV. The instruction given by the court upon its own motion was a very favorable presentation of the defendant’s case upon her own theory, and of it the defendant has no cause to complain. The word 11 advised” used in that instruction succinctly embodied the impression which she, by her evidence, tried to make upon the jury as to the motive of her action, and is not obnoxious to criticism when read in connection with instruction, numbered 4, for the defendant, which fully illustrates the sense in which the word is used in this instruction.
V. No complaint is made against the instruction upon the measure of damages, r.Sr is there ground for any; nor do we discover in the amount of the verdict or the circumstances of the case any evidence upon which to base the suggestion'‘that the verdict was the result of prejudice or passion upon the part of the jury.
Finding no reversible ’ error in the record the judgment will be affirmed.