
    Lawrence v. Lanning.
    Where the statement of a witness is relevant to the issue, evidence of a contradictory statement made by him out of Court, is admissible, to impeach his testimony.
    In an action for the malicious prosecution of a criminal charge against the plaintiff, malice can not be inferred from the fact that the defendant employed counsel to prosecute the charge.
    The mere belief that a person has been guilty of a crime, is not sufficient to authorize a criminal prosecution against him. There must be reasonable and probable cause for the prosecution.
    
      Thursday, June 2.
    ERROR to the Franklin Circuit Court.
   Davison, J.

This was an action on the cáse by Lanning against Lawrence for malicious prosecution. Plea, not guilty. Yerdict and judgment for the plaintiff below.

Upon the trial it was proved that in the prosecution alleged to have been malicious, Lawrence had charged Lanning with having stolen his coat. There was evidence tending to prove that Lawrence, on the 2d of September, 1849, had lost said coat in the woods, and that Lanning had found it there on the same day, and taken it to the house of Nancy Stout, near to where it was found, that it might be discovered by the owner. Lawrence then produced Caleb Jones, a witness, who testified that on the 4th of September, 1849, he and his father were at Lawrence’s saw-mill, and, while there, he saw a coat lying on a bench which he took to be the coat said to have been stolen by Lanning; whereupon Lanning asked the witness whether he did not, at a certain time and place specified, tell one Foster that if his, Jones’s, father should swear that he saw the coat lying on the bench mentioned by the witness on that occasion, he would swear to a d-d lie? which question the witness answered in the negative. Lanning, at the proper time, called Foster, and asked him whether Jones did not, at the time and place designated, state that if his, Jones’s, father should swear that he had seen said coat lying on said bench on the 4th of September, 1849, he would swear to a d-d lie? to which question Lawrence objected. The Court overruled the objection, and Foster testified that Jones did make such statement at the time and place designated. Jones’s father, before this, had been called as a witness, and stated that he saw the coat at the mill on the 4th of September, 1849.

The plaintiff contends that the matter sworn to by Jones was not material to the issue, and, therefore, the testimony of Foster, showing his statements out of Court was improperly admitted.

The point here presented, admits of some doubt. But we are inclined to believe that the ruling of the Court was correct.

Lanning had proved that on the 2d of September he found the coat and left it at Stout’s. This tended to show his innocence of the charge upon which he had been prosecuted. Jones testified that he had seen the coat at the mill on the 4th of September. If the coat was at the mill on the day stated by Jones, the jury might have inferred that it was not found and left at Stout’s. Mr. Slarkie says, “the rule does not exclude the contradiction of the witness as to any facts immediately connected with the subject of inquiry.” 1 Starkie’s Ev. 183.

The matter sworn to by Jones seems to have been in conflict with the state of facts set up by Lanning, tending to prove his innocence of the charge of stealing the coat, and was, therefore, “immediately connected with” an important inquiry on the trial.

We think that Jones’s testimony was relevant and not collateral to the i'ssue; and proof that he made a statement out of Court contrary to what he had sworn on the trial, was propei’ly admitted.

Among the several instructions given to the jury, the following are complained of by the plaintiff in error:

1. That the fact that the defendant employed counsel to prosecute the criminal cause against the plaintiff, is a fact from which the jury may infer malice.

2. That because the defendant believed the plaintiff had stolen his coat, is not sufficient to authorize him to institute a criminal charge against him.

The first instruction is evidently erroneous. We know of no principle that would authorize the jury, to infer malice from the mere fact of the defendant having employed counsel to prosecute the criminal charge alleged against the plaintiff. It has been held, that the advice of counsel as to there being a good cause of action upon the real facts, will repel malice. 2 Starkie’s Ev. 499, 500.—3 Mason 102. And, although it cannot be said that the employment of counsel to prosecute in such case, would repel malice, still, we think it is not a fact from which malice can be fairly inferred. The jury may have been misled by this instruction, and, on account of it, the judgment must be reversed.

The second instruction was correct. The mere belief of Lawrence that Lanning had stolen his coat was not sufficient to authorize the prosecution. There must have been reasonable and probable cause for instituting the criminal proceeding. Stone v. Stevens, 12 Conn. 219.

J. Hyman, for the plaintiff.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  