W. W. Glasgow v. S. E. Owen, 69 Tex. 167

Collard, Judge. The first assignment of error is in relation to the charge of the court in whiefti the jury are told, in effect, that if Owen was acting in obedience to an order of the commissioners court of Hill county in opening the road in good faith, and crossed over into McLennan county and cut Glasgow’s fences, the latter would still be liable in damages for prosecuting Owen for the trespass, if he did so upon malice without probable cause. We do not believe this charge is free from error.

The jury should have been left to consider the fact of Owen crossing Over into McLennan county, in determining whether there was probable cause for the prosecution. The charge indicates that the probable cause must be found.from other facts. The very fact relied on by Glasgow to justify the prosecution — cutting the fence in McLennan county, showing probable cause and the want of malice — is by the charge made useless for that purpose; at least the jury might have so understood the charge. We think it was an incorrect instruction and should not have been given. The

definitions given by the court, of malice and probable cause are correct. They are in almost the exact language of the

definitions given and approved in the case of Ramsey v. Arrott, 64 Texas, 322, and approved by the highest authority. In relation to the advice of counsel, the charge of the court, was a correct exposition of the law. The advice of an attorney that an offense has been committed, upon a full and fair statement of all the facts, will not justify a prosecution; it is not a complete defense; it is a fact to be considered by the jury, and they may still find malice and want of probable cause, notwithstanding such advice. The charge asked by defendant upon this subject can not be maintained.

Advice of counsel, when fully informed, will not absolutely repel the presumption of malice, and the jury should not be so instructed. Malice and the want of probable cause are questions of fact to be found by the jury from all the facts and circumstances, taken in connection with such advice. (Jacobs, Bernheim & Co. v. Crum, 62 Texas, 411; Ramsey v. Arrott, 64 Texas, 322.) The defendant asked the court to instruct the jury that plaintiff could not recover unless the evidence showed that the prosecution was at an end. The refusal of this charge was assigned-as error.

The cause of action is not complete until the prosecution has ended. It could not be known whether there was any injury or not until there was an acquittal of the charge, nor what the extent of the injury might be. The suit can not be maintained at all if there is a final conviction. To maintain the action, it must be shown that there was a prosecution; that it was malicious; that it was without probable cause, and that the prosecution is at an end. (McManus v. Wallis, 52 Texas, 535; Usher v. Skidmore, 28 Texas, 617; 2 Greenleaf's Evidence,

section 452.) There is no evidence in the record showing that the prosecution had terminated. The court should have, given the instruction asked by defendant upon this subject. The judgment of the court should be reversed and the cause remanded for a new trial. Reversed and remanded. Opinion adopted November 22, 1887.