
    JOHN STEIL, respondent, vs. JOHN ACKLI, appellant.
    3. It is the duty of the court to tell the jury what facts stated in the petition are to be taken as admitted, because the defendant has failed to deny them; and it is error for the court to leave to the jury the task of sifting the pleadings, to find what facts are stated on one side and specifically denied on the other, so as to make an issue, which they are to determine by the evidence. Butcher vs. Death & Teasdale: Ante, page 271.
    APPEAL from St. Louis Circuit Court.
    STATEMENT OF THE CASE.
    This was an action for malicious prosecution, brought in the St. Louis court-of common pieas. The petition stated, that the defendant did falsely, maliciously and without probable cause, cause the plaintiff to be indicted; that the plaintiff was indicted, imprisoned, gave bail, was tried and acquited by the jury, without leaving the box, and asked damages for the injury sustained. The answer denied that the defendant falsely, maliciously and without probable cause, prosecuted the plaintiff, but that he informed against him from good and justifiable motives, and upon probable cause, and which answer was duly sworn to by the defendant.
    Upon the trial the plaintiff gave no testimony to prove the facts stated in his petition, except to show, by the testimony of a juror, who heard the case, that the plaintiff had been acquitted, and that the rock he was charged with taking were taken by his men through mistake. ¿The defendant in this case was not a witness against the plaintiff. There was no proof of the prosecution at all, except in the pleadings; the court, holding that all the facts stated in the petition were admitted by the answer, and therefore required no proof from the plaintiff. The plaintiff gave testimony to show how the rock were taken.
    To the decision of the court, as to the effect of the pleadings, the defendant excepted, and moved the court to permit him to amend his answer so as to admit the defence of want of malicious motives, which the court refused and defendant excepted.
    The defendant also offered to prove by the testimony of two grand jurors the statement made by him before them, which the court refused, and defendant excepted.
    The defendant also proved how the rock were stolen, and the conduct of Steil in relation to it, as he had received the rock and refused to account for it.
    The court then gave the following instructions, to the giving of which the defendant excepted:
    3. Malice ¡nay be inferred from the want of probable cause, taken in connexion with the other circumstances in evidence.
    2. If the jury find from the evidence, that the defendant did prosecute the plaintiff as alleged, with malice, and without probable cause, they will find for the plaintiff and assess the damages accordingly.
    3. If the jury believe from the evidence, that the plaintiff did not steal the rock mentioned, then the mere refusal to pay therefor is not, of itself, any grounds for the criminal prosecution alleged in the petition. But the statement made by the plaintiff to defendant, concerning the rock alleged to have been stolen, the jury will consider, in arriving at the conclusion, whether there were malice and want of probable cause or not,
    4. If the jury believe from the evidence, that there was plainly a want of probable cansé, they may infer malice, and in arriving at a conclusion in this case, they should take into consideration all the facts and circumstances connected with the prosecution; also, the fact of the 
      
      plaintiff’s acquittal. The acquittal ofthe defendant is like any other fact in evidence, and although standing alone, would not make out the want of probable cause, yet it should be considered by the jury as evidence to be weighed by them in connection with the other testimony.
    5. The question for the jury to determine from the evidence Í3 whether the defendant did maliciously and without probable cause, prosecute the plaintiff, as stated in the petition, and the burden of proof is on the plaintiff. The' plaintiff must prove to the satisfaction of the jury, that there was want of probable cause or ho cannot recover, and he must alio prove malice in the defendant, either express or implied, to be collected from the circumstances, showing plainly the want of probable cause. It is not sufficient that the criminal charge was. false, it must be shown that it was so without malice and without probable cause, in order to maintain this action.
    All of the averments in the petition, not denied in the answer, are to be taken as admitted, but every averment in the petition which is denied, is not evidence, nor is the denial of the averment in the answer evidence, but all. averments when denied and the denials also are to be supported by proofs or disregarded by the jury.
    The defendant then asked the following instructions, which the court refused, to the refusal of which the defendant excepted at the time:
    1. That neither the plaintiff’s petition nor the defendant’s answer to the same, are by the jury, to be considered as any evidence, unless sustained by the testimony.
    2, That-the bare acquittal of the plaintiff in the criminal court, is not sufficient evidence of want of probable cause.
    3. That it is incumbent on the plaintiff to prove that the defendant was instigated by malice in his prosecution before the criminal court.
    4, The indictment found by the grand jury is evidence from which the jury may infer that there was probable cause for the indictment.
    The jury found a verdict for the plaintiff for $500, and the defendant filed his motion and reasons for a new trial, which the court refused, and the defendant excepted, and brings his case to this court by appeal.
    The appellant assumes the following propositions as to the errors committed by the court below:
    1. That the court erred in the constructions placed upon the pleadings, in holding that all the facts stated in the petition were admitted.
    . The petition sets but, that the defendant did mailiciously prosecute the plaintiff, and beside the facts necessary to constitute a cause of action, sets forth facts merely in aggravation; as for instance, that the plaintiff was imprisoned, &c The answer denied that the defendant did wilfully, maliciously and without probable cause, prosecute the plaintiff. The defendant’s counsel supposed that the answers put in answer all the facts ofthe petition and that the answer Was a good general issue.
    The gist of the charge was the malicious prosecution, and as soon as that was stated, the law had been complied with, and the other things stated were matters in aggravation of damages and required no explicit denial: See code of practice, acts 1849, p. 79, art. 6, sec. I; and as a matter of course, the party was not bound to answer any thing, but the facts constituting the cause of action.
    If the party erred, leave should have been given him, to amend his answer: art. 11, sec. 5;
    The construction the court put upon the answer was, that the fact of prosecution, the indictment, arrest, imprisonment, acquittal, malice, &c., and in fine, that every thing was admitted by the answer, and consequently, the defendant stood defenceless, exposed to the tender mercies of the jury.
    2. The court erred in the instructions, given to the jury, as the instructions left to the jury questions of law, to wit: the question of probable cause, which was for the court: See 2 Selwyns, n. p. 253, n 2, and page 257; Sutton vs. Johnstone, 1 T. R. 45; Masteyn vs. Deefo,2 Wend. R., 425; McCormick vs. Tisson, 7 Cow. R., 715; Pangbum vs. Bull, 1 Wend. R., 345; Mum vs. Duport, 3 .Wash, C. C. R., 341; Virtue vs. Pointer, 3 Western Law Journal, 384. In this last case, the jury found the malice, but the court found the probable cause, and non-suited the plaintiff.
    It will be seen by reference to the instructions given by the court, thatthe whole question of probable cause, was given by the court to the jury, without the jury’s being instructed what constituted a probable cause or what would justify the defendant in his prosecution. Questions most peculiarly belonging to the judge.
    3. The court erred in refusing the instructions asked by the defendant, and consequently must have held the following propositions:
    1. That the pleadings were evidence.
    2. That the acquittal of the plaintiff in the criminal court was sufficient evidente of probable cause.
    3. That it was not incumbent upon the plaintiff to prove that the defendant was instigated by malice!
    4. That the indictment was no evidence of probable cause.
    If these propositions, as assumed by the court, are correct, of course the defendant was exposed with bare head to the peltings of the storm, and could seek for nothing but mercy.
    That the finding of the indictment by the grand jury was at least prima facia evidence of probable cause: See Garrard vs. Willet, 3 J. J. Marsh. R-, 628; Kerr vs. Workman, Addis. R., 270.
    In many eases the indictment would be the only evidence, the defendant could produce of any cause for the "prosecution, and to bar him from this, would leave him defenceless.
    See Brant vs. Higgins, 10 Mo. R. 728, 734.
    The court erred in refusing to admit the statement made by the defendant to the grand jury, to show that the indictment was found by them against plaintiff, upon a true statement of the case, and that the error is attributable to them, and not to the defendant, there was no proof thatthe defendant was examined before'the petit jury, and he does not appear to have been summoned as a witness, nor to have been examined.
    Now suppose, what was the fact in this case, thatthe things charged to have been stolen, had .been taken by the defendant’s servants, and that he had justified them in the act, refusing to deliver the property taken or to account for it in any way, or to pay for its value; and the defendantj had imformed the: grand jury that; Steil’s] men had taken the things, and yet, the grand jury had found an indictment against the employer instead of finding it against the servants; it at once becomes evident, how important it is, to leave the evidence or statement made by the defendant, to the grand jury.
    Thatthe testimony of the party is good evidence, see the following cases.
    As a grand juror may be sworn to proof who was the prosecutor, 2 Selw. N. P. 260; Stykes vs. Dunbar, cited, it would be but reasonable, that the testimony of the grand juror should be admitted for the defendant, to show that the grand jury had found the indictmen upon sufficient testimony, or that they had erroneously indicted the wrong person.: In the latter case, the sole testimony the defendant could produce to discharge himself, would be, to show by the testimony of the grand juror, that they had committed the mistake, and in dieted the wrong person, and wrongly endorsed the defendant’s name as prosecutor.
    The counsel for appellant therefore claim that the court below erred as above stated.
    1. In its construction of the pleadings.
    2. In the instructions given, leaving the question of probable cause to the jury.
    3. In refusing the instructions asked by defendant.
    4. In refusing the testimony offered by defendant.
    And that for these errors its judgment should be reversed, and the cause remanded to the court below for a new trial.
    
      Gibson, for respondent.
    The instructions given by the court, fully ancS completely laid down the law of Se ease an<3 presented the law as favorably for the defendant as could legally be dene.
    The first, second and third instructions refused, are not legal in the form in which they were written; they were all substantially included in proper form in the instructions given.
    The fourth instruction asked by the defendant was properly refused. It is substantially' contained in the fourth instruction given.
    The court properly refused to admit the testimony gire-i* by Acíüi Wots» the grand jury Itiney vs. Vanlandingham, 9 Mo. 816.
    “In an action for malicious prosecution the “testimony ef the ¿fefendsní before She officer,, jw not admissible, unless it appears that the facts testified to, were known lío the defendant ¡alione.”
    In this case, Ackli was not present at all, when the theft, if say was ce-mmlitsd; 6 Mo. ¡Rep., jdpckman vs. Griffin'..
    •“Thegeneral rule, that a parly cannot be allowed to make evidenwin his awn favaT is noi /departedfrom in an action of malicious prosecution, except upon the ground oí necessity.’5'
    'The.court properly refused to permit the defendant to amendihis answer, because at tbs’ dime that leave to amend was prayed, the plaintiff had closed his case, and relied1 upon the-affirmative — staieypqnt, sworn to by' the defendant, that he had prosecuted the-plaintiff from' good and justifiable .rpotives, &c,
    it is.within the discretion of the court b.elow, to grant or refuse leave to amesif.a'nd except? Sn-yery flagrant eases, this.qp^rt will not interfere with the court below in the «seseóse o9 suoh disqretion.
    The,court construed the.pleadipgs properlyin instruction fourth.
    IThe defendant below made no,pbjectipij that the fact of probale cause was submitted! By the court to the jury, but apart frpm this,, the instructions given did lay down the law as applicable to cases of malice ■ and probab|c(cause, p.uljBj.iittjn^ nothing but questions of fact to the jury.
   Gamble, J.,

delivered the ,g,pinion qf (the .cojurji,

In this case the judgment must be reversed, and ti;e only ground upon which it is reversed, is, the giving of . the . sixth instruction, p) these wordst “All averments in the petition, not denied in t]h.e answer, are to he taken as admitted, but every averment in the petition ;wh(ich jg «denied, is .not evidence, nor is the denial of the averment in thje answer evidence, hut all averments when denied and the denials also, ai’e to be supported by proofs, or, disregarded by the jury.”

It ¡has.already been decided, at this ierm/in the c^se of Butcher vs. Death & Teasdale., that it is the duty of the .court to tell the jury what facts, stated in the petition, arettobe, taken as admitted, because the defendanfhas failed to deny them; and that it is e.rr.or for the ¡court to leave to the jury iSihe task of sifting the pleadings to find what facts are stated -on-one side ¡and specifically denied ,on the other, go as,£9 make an issue, which they are to determine by- the evidence.

The judgment will be reversed and the cause remanded for further proceedings,

the other judges concurring.  