
    Lacy v. Mitchell.
    Malicious Prosecution—Probable Cause.—Probable cause is that apparent state of facts found to exist, upon reasonable inquiry, such as the given ease rendered convenient and proper, which would induce a reasonably intelligent and prudent man to believe the accused had committed the crime charged, or in a civil case, that a cause of action existed.
    APPEAL from the Kosciusko Circuit Court.
   Perkins, J.

Suit by Mitchell against Lacy for malicious prosecution. Judgment below for the plaintiff, for $100. The case is brought up on the evidence alone. It is contended that it fails to establish want of probable cause for the prosecution of Mitchell by Lacy.

Probable cause may be defined to be that apparent state of facts found to exist upon reasonable inquiry; that is, such inquiry as the given case rendered convenient and proper, which would induce a reasonably intelligent and prudent man to believe the accused person had committed, in a criminal case, the crime charged; and in a civil case, that a cause of action existed.

We think, on the whole evidence, a want of probable cause appears, supposing this to be a question for the court and not for the jury, in this case. 8 Blackf. 525; note. Lacy and Mitchell were living in the same house; Mitchell a tenant of Lacy. Lacy was absent from home, and during his absence his daughter saw Mitchell, one evening, carrying a little shelled corn, in a basket on his arm, from the barn to the chicken-coop, and saw him feed it to his chickens. Mitchell and Lacy both had corn in the barn. Lacy had a hundred chickens which had access to it, and were often on it. Lacy's daughter looked at her father’s pile of shelled corn, and thought a bushel of it must have disappeared during some indefinite period of time. Mitchell took his own corn in the basket to the chickens. Lacy’s daughter told her father, when he came home, what she had seen. Lacy went to a magistrate and insisted on prosecuting Mitchell, who was a man of good character, for larceny. The magistrate remonstrated, but was, at last, persuaded to issue a writ on Lacy’s affidavit. Lacy had been heard to threaten revenge on Mitchell for something not explained. '

We do not think probable cause for the prosecution was shown, considering all the circumstances. Lacy could have easily learned the facts of the case by speaking with Mitchell, who was near him. lie should have made more inquiry under the circumstances, of this ease. If he really believed that Mitchell had stolen his corn, the belief arose from his own negligence. As to what is probable cause, and whether a question for the court or jury, see Greenl. on Ev., vol. 1, sec. 49; vol. 2, sec. 455, et seq.; 1 Starkie on Slander, 279; 2 Id. 71, et seq.; 4 Ind. Rep. 194. See on the subject of malicious prosecution, 18 Ind. Rep. 161, 321.

James S. JPrazer and G. W. Frasier, for appellant.

Counsel for appellant arguedIn actions for malicious prosecution, plaintiff must show want of probable cause. Stone v. Crocker, 24 Pick. 61 ; Adams v. Lisher, 3 Blackf. 445; Cummings v. Parks, 2 Ind. 148.

Whether the facts are true is a question for the jury; whether they amount to probable cause is a question of law. Brown v. Connelly, 5 Blackf. 390; Newell v. Downs, 8 Blackf. 525 ; note.

Per Curiam.—The judgment is affirmed, with one per cent, damages and costs.  