FREEBORN G. WELLS vs. WILLIAM B. PARSONS, 3 Harr. 505

By the Court. Booth, Chief Justice: The court are divided in opinion. A majority of us are for refusing the nonsuit, considering the evidence as in some respect conflicting and proper to be submitted to the consideration'of the jury. The matter of probable cause for the prosecution is a mixed question of law and fact; the facts to be found by the jury, and the court to decide whether they amount to probable cause. The case cited from 13 Com. Law Rep. seems to have involved bu a single fact which was uncontroverted, but the evidence in this casi has taken a wider range, and involves many facts.

We think it bet' ter to let the case take the usual course before the jury, whom w shall instruct as to the existence of probable cause for the proseen tion. The case went to the jury, and chief justice Booth charged as fob lows:— Booth, Chief Justice. — The plaintiff is bound to prove — 1st. Tba there was a prosecution. 2d. That it terminated in favor of tb plaintiff. 3d. That the defendant was the prosecutor. 4th. That hi was actuated by malice. 5th. That there was a want of probabb cause. 6th. The damages that plaintiff has sustained. 1st and 2d.

It is admitted that a prosecution by indictment was instituted; and that it terminated in the acquittal of the defendant. It remains then to inquire whether the defendant was the prosecutor. 2d. The indorsement of the defendant’s name on the bill of indictment, as a witness, is no evidence that he was the prosecutor.

If the defendant employed an attorney or counsel to conduct the prosecution, or was active in forwarding or carrying on the prosecution; such as giving instructions concerning it, paying expenses, or procuring the attendance of witnesses, it is sufficient proof of the defendant’s being the prosecutor. 4tb. There are two descriptions of malice. Malice in fact; or in other words, express malice; and malice implied by law.

Express malice means ill will against a person, and is indicated by the disposition or temper of mind with which the party did a particular act; as where he did it with the view to injure a particular individual ¡generally, or in some specific manner, or that he acted from personal [animosity, or an old grudge. It may be established by a fair inference from the facts and circumstances proved in the particular case, j 5th. But however malicious may have been the motives of the defendant towards the plaintiff, he is protected by the law in having [prosecuted the plaintiff, if he had probable cause for so doing.

This Irule of law which protects a party for instituting or conducting a «criminal charge, where there is probable cause for it, proceeds upon principles of policy, convenience and justice. And hence it is, that In an action for a malicious prosecution, the plaintiff is bound to give Evidence of a negative; that is, he must give some evidence showing gr want of probable cause.

If it be shown that there was a want of liny probable cause, the law implies malice from that circumstance. | The whole case rests then, upon the single question, whether the llefendant had probable cause for the prosecution against the plain-liff? Whether from all the circumstances of the case, the present llefendant had a reasonable ground of suspicion against the plaintiff? Proof of express malice is not sufficient evidence of want of proba-lle cause; nor is the acquittal of the defendant upon the trial of the Indictment.

I Had the defendant a reasonable ground to suspect the plaintiff? ¡The jury are to ascertain and decide the facts in this'case. It is for She court to decide whether those facts amount to probable cause; whether they afford a reasonable ground of suspicion. Testimony las been offered to prove that William B. Parsons, on Saturday evening, March 13, 1841, was at Laurel, attending a quarterly meeting. That Wells and Truitt were also at Laurel, the afternoon or evening of that day. That on such occasions of religious worship, Parsons always remained during the whole night away from his own house.

During the whole of that night Wells and Truitt were together; they were traced from Laurel to Creighton Wingate’s house. They left Wingate’s, each on horseback, at half past two o’clock, A. M., and arrived at Well’s house about day break on Sunday morning. Some time on Saturday night, the house of Parsons was broken open, and a robbery committed. The tracks of two horses were found near the house; tracks of a man’s footsteps, said by some witnesses to resemble Truitt’s, were found leading from the house, and a chest at some distance from the house was found broken open, aad the contents taken out.

This chest contained money belonging to Parsons, among which was a peculiar piece of coin not common in our currency, which was found in Truitt’s possession, and identified by Parsons as his money, and which he described, according to Kinney’s testimony, before he saw it. Truitt offered to tell J. F. Kinney the officer who arrested him, to use Kinney’s language, “all about it;’ and Kinney advised him not to tell. If these facts were proved tc the satisfaction of the jury, the court were of opinion that thej amounted to probable cause for the prosecution. M‘Fee and Ridgely, for plaintiff. Houston, for defendant.

Verdict for defendant.