42 Minn. 516 | Minn. | 1890
This is an action for malicious prosecution. The principal question involved in this appeal arises upon the charge of the court. The defendant had caused the arrest of the plaintiff upon a charge of violating the election law of the state by his conduct as an inspector at a primary election, and particularly of “having received the vote of a stranger after the vote of said stranger had been duly challenged by a qualified voter at said primary.” Upon the evidence at the trial it became a question for the jury whether such challenge was in fact made, or, if made, whether the plaintiff heard it or knew of it; and it was submitted to the jury upon the issue of the existence of probable cause for the prosecution, which was
2. The evidence offered by plaintiff tending to show defendant’s activity and forwardness in causing the publication of the fact of plaintiff’s arrest upon the criiSinal charge was proper upon the issue of defendant’s malice. It is clear, however, that it was error without prejudice, because it is evident that the decision of'the jury turned on the question of the existence of probable cause; for they were instructed, without objection, that if there was no probable cause the law will imply malice. This was equivalent to a direction that if they found no probable cause they must infer malice; and, if this was not strictly correct, the plaintiff can hardly complain of the rule as laid down. Malice in such cases is a distinct issue, to be found as a question of fact by the jury. They may infer it from want of probable cause, but are not legally bound to do so. The plaintiff cannot, therefore, complain of the ruling in question, since the result could not have been affected by it.
3. Evidence of the testimony of Wright tending to show that plaintiff. invited the prosecution was also proper on the question of damages; but, as the case turned, the question of damages was not reached, and the evidence became immaterial.
Order affirmed.