25 Ill. 339 | Ill. | 1861
It is urged that the court below erred in giving the fourth instruction asked by defendant in error, and refusing to give the last asked by plaintiff in error. The instruction given, informs the jury that the discharge of the plaintiff, by the examining justice of the peace, was prima facie evidence of the want of probable cause for the prosecution of Thorpe. The instruction refused to be given, asserts the reverse of that proposition. Then, if it was proper to give one, it follows that the other should have been refused. In the case of Israel v. Brooks, 23 Ill. 575, we held that the discharge of the person accused by the examining magistrate, is not evidence of the want of probable cause, but to establish that fact, something more must be proved. That case is in point, and is decisive of this. The court should have refused the instruction given, and have given the one refused. The judgment of the court below must therefore be reversed, and the cause remanded.
Judgment reversed.