
    Koch v. Tennison.
    
      Malicious prosecution — Evidence to sustain recovery — Acquittal or discharge, want of probable cause and malice — Prima facie case of want of probable cause established, when.
    
    1. Plaintiff, in order to establish his right to recovery in an action for malicious prosecution, must show the acquittal or idis-eharge, the want of probable cause, and malice.
    2. Proof of discharge after the hearing of witnesses, in an action for malicious prosecution, makes á prima facie case of want of probable cause.
    [1] Malicious Prosecution, 38 C. J. §§26, 59, 85; [2] Id., 38 C. J. §156 (Anno.).
    (Decided January 7, 1924.)
    Error: Court of Appeals for Hamilton county.
    
      Messrs. Dinsmore, Shohl é Sawyer; Mr. Eugene Adler and Mr. Sidney Adler, for plaintiff in error.
    
      Mr. Samuel Rotter and Mr. D. T. Hachett, for defendant in error.
   Hamilton, J.

This proceeding is in the nature of a companion suit to the ease of Koch v. Pond, ante, 1, and was an action for malicious prosecution, based upon an affidavit charging Tennison, the defendant in error, with perjury. Tennison and Pond were partners at the time of bringing the suit in the municipal court, out of which the charges of perjury grew, and the charge of perjury against Tennison was as to testimony like that given by Pond.

Tennison, as did Pond, secured a judgment against Koch for malicious prosecution. Error is prosecuted here by Koch, plaintiff in error, against Tennison, defendant in error, seeking a reversal of that judgment.

What we have said in the opinion in the case of Koch v. Pond, will apply to this case on the questions raised as to the admissibility and rejection of evidence and the complaint against the general charge.

There is, however, serious complaint against special charges, given by the court, at the request of the plaintiff below, over the objection of the defendant below.

It appears from the record that at the request of plaintiff below the court gave nine special charges, four of which, it is urged, are clearly erroneous, while others are subject to criticism.

The charges which it is claimed are erroneous are special charges Nos. 1, 2, 6 and 7, which are as follows:

“1. The burden of proving the want of probable cause is upon the plaintiff. But if the plaintiff shows that he has been arrested, tried, and dismissed after the hearing of witnesses, he has made a prima facie case.”

“2. The mere belief of the defendant that he had reasonable cause for prosecuting the plaintiff, is not sufficient. It must have been an honest and sincere belief and it must have been based upon reasonable grounds. If you find from the testimony that the defendant in prosecuting the plaintiff did not have an honest and sincere belief or that same was not based upon reasonable grounds, your verdict must be for the plaintiff. ’ ’

“6. Honest belief in the guilt of a charge is not sufficient if that belief was induced by defendant’s own negligence, without any occasion given by the party prosecuted, and if you find so, your verdict must be for the plaintiff.”

“7. I charge you that if the defendant withheld any information from his counsel, with the intent to procure an opinion that might operate to shelter and protect him against a suit, he is liable notwithstanding his counsel may have mistaken the law, and your verdict must be for the plaintiff.”

These charges seem to have been requested and given by the court under a misconception of the cause of action. Had the action been one for false imprisonment^ such charges might have been permissible, although we are not so holding. But this is an action for malicious prosecution. To establish his right to recovery, the plaintiff must show three things: the acquittal or discharge; want of probablé cause; and malice.

The rule is that proof of discharge, after the hearing of witnesses, makes a prima facie case of want of probable cause. This is as far as the oases go. As was held in the case of Hopwood Provision Co. v. Joslyn, 24 C. C. (N. S.), 266:

“In every action for malicious prosecution, malice is a necessary element to be proven as a fact and does not necessarily follow from the want of probable cause, though it may be inferred from it.”

The effect of the special charges was to eliminate the required proof that the prosecution was malicious. "While some of the facts stated in the charges might raise some inference of malice, this inference must be drawn by the jury and not by the court. This vice appears in special charges 2, 6 and 7, complained of.

Special charge No. 1 charges that if the plaintiff has been arrested, tried, and dismissed, after the hearing of witnesses, he has made a prima facie case. This is misleading. We have. heretofore stated the rule to be, that such proof makes a prima facie case of want of probable cause only. This special charge eliminates the necessity of the plaintiff proving that the prosecution was malicious.

We do not approve of any of the special charges given.

We are also of opinion that the judgment is excessive. But, since the case will have to be retried, we will not comment on what would be a proper amount.

For errors in giving the special charges, and because the verdict is excessive, the judgment will be reversed, and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

•Cushing and Buchwalter, JJ., concur.  