70 N.W. 625
Iowa
1897
Kinne, C. J.

1 I. It is said that the court erred in excluding evidence offered by the defendant to the effect that at the time he commenced the criminal proceeding he had knowledge that a great many chickens had been stolen in that neighborhood. True, that fact was pleaded, but, if true, it would not authorize the defendant to proceed criminally •against the plaintiff; nor do we discover how such a fact would have availed the' defendant, or how it ■could be said to show, or tend to show, that in causing plaintiff’s arrest he did not act with malice, and ■did have probable cause to believe the plaintiff to have been guilty of the larceny of the particular ■chickens in controversy. We think the evidence was properly excluded.

*4802 3 4 *479II. It is insisted that the court erred in the third instruction given to the jury. The record does not ■disclose where any instruction begins or ends. No numbers appear in the charge, and hence we cannot .say whether that portion of the charge complained of is in fact the third instruction or not. The portion of the charge complained of reads as follows: “ The discharge by a magistrate of a person accused of crime *480upon preliminary examination, is prima facie evidence of want of probable cause.” It is insisted that the court erred in underscoring the words “prima facie” We said in State v. Cater, 100 Iowa, 501 (69 N. W. Rep. 883), that it was not proper to underscore words in instructions; that the effect might be to give such words undue weight, and thus to prevent the jury from giving due weight and consideration to other parts of the charge. The words underscored in the instruction under consideration are usually italicized in legal treatises and in judicial opinions, and hence it may be said that they are not embraced within the rule in State v. Cater. It is insisted that the portion of the instruction set out is an erroneous statement of the law, as applicable to the facts of this case. This was not a case of one accused of crime upon a preliminary examination. It was a case where, upon information filed before a justice of the peace, the plaintiff was accused of an offense, not indictable, but triable before the justice. Therefore the charge, though correct as applied to a case of one accused of a crime upon preliminary information, Hidy v. Murray, 100 Iowa, 65 (69 N. W. Rep. 1139), was inapplicable to the case at bar, where the crime as charged, petit larceny, was triable by the justice. Appellee contends that there could be no prejudice on account of this error, as the same rule of law is applicable to the case of one discharged on a hearing upon a preliminary information as to the one discharged upon a trial for a crime which was triable by the justice of the peace. But such is not the law. It may be that the justice who tried the plaintiff was satisfied from the evidence that the defendant had probable cause for instituting the criminal proceedings. Bat that was not what he was to determine upon that trial. Having the power to try the plaintiff, it was his duty to *481find Mm not guilty, and to discharge him, unless he was satisfied beyond a reasonable doubt as to Ms guilt. Sitting as a magistrate, and conducting a preliminary examination, he would have the very question of probable cause to try, and the evidence is on the side of the prosecution alone, as a rule, and ex parte. Brant v. Higgins, 10 Mo. 728. Probable cause does not depend upon the guilt of the accused party in fact, but upon the honest and reasonable belief of the party commencing the prosecution. In the case at bar the question determined by the justice was the guilt or innocence of the plaintiff of the crime charged. If he had been sitting as a committing magistrate, he would have determined, not the guilt or innocence of the plaintiff, but whether the facts were such as tended to show that the plaintiff was probably guilty of the commission of a public offense. We need not extend this discussion, as the rule of law is well settled that the discharge of a defendant in a criminal prosecution does not raise even a presumption of want of probable cause. As some of the authorities put it in such a case, the acquittal affords no evidence that such charge was preferred without probable cause. 14 Am. & Eng. Enc. Law, p. 65; Newell, Mal. Pros., p. 294; Griffin v. Chubb, 7 Tex. 603 (58 Am. Dec. 85); Heldt v. Webster, 60 Tex. 207; Williams v. Vanmeter, 8 Mo. 339; Griffis v. Sellars, 2 Dev. & B. 492 (31 Am. Dec. 422); Bitting v. Ten Eyck, 82 Ind. 421; Thompson v. Rubber Co., 56 Conn. 493 (16 Atl. Rep 554); Boeger v. Langenberg (Mo. Sup.) 11 S. W. Rep. 223; Townshend, Sland & L., 709, and cases cited; 2 Greenleaf, Ev., section 455; Cooley, Torts (2d Ed.), pp. 214, 215. See, also, Stone v. Crocker, 24 Pick. 81. The instruction therefore, if it had been so worded as to apply the rule therein announced to a case of a discharge upon a trial of one accused of a crime, would have been erroneous. We think the instruction was erroneous and prejudicial, *482As we have said, it was not applicable to the case, and hence improper.

III. Other questions are argued, which we have considered. We discover no error save that already mentioned. For the error pointed out, the judgment below must be reversed.