
    No. 639
    KOCH v TENNISON
    Ohio Appeals, 1st Dist., Hamilton County
    No. 2313.
    Jan. 7, 1924
    745. MALICIOUS PROSECUTION — 1. Charges to jury are erroneous that fail to state clearly that plaintiff must prove malice.
    2. Discharge after the hearing of witnesses makes a prim'a facie case of want of probable cause only.
   HAMILTON, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Original action in Common Pleas, wherein Alfred F. Tennison recovered a judgment against Albert G. Koch in an action for malicious prosecution. In charging the jury, the trial court said in the first charge that if plaintiff showed that he had been árrested, tried and dismissed after hearing of witnesses, he had made a prima facie case. In-charges 2, 6 and 7, the court said in effect that if defendant in prosecuting plaintiff did not have reasonable grounds or an honest and sincere belief, then the verdict should be for plaintiff. Koch contending that these charges were erroneous, prosecuted error to the Court of Appeals', which held:

Attorneys — Dismore, Shohl & Sawyer, Eugene Adler and Sidney Adler, for Koch; Samuel Rotter and D. T. Hachett¡ for Tennison; all of Cincinnati.

1. To establish the right of recovery, plaintiff must show three things: the acquittal or discharge, want of probable cause, and malice.

2. Proof of discharge after the hearing of witnesses makes a prima facie case 'of want of probable cause only. The first charge was therefore misleading because it stated that plaintiff would, by proving such facts, make a prima facie case.

3. The effect of charges 2, 6 and 7 was to eliminate the required proof that the prosecution was malicious. While some of the facts stated in the charge might raise some inference of malice, this inference must be drawn by the jury and not by the court. Judgment reversed.  