
    Robert Raulston vs. Shadrack Jackson.
    1. Malicious Prosecution. Evidence. Character of, required in defense. In an action of malicious prosecution the defendant is only required to show, that at the time he instituted the prosecution he acted upon such a state, of facts known to him, or derived from reliable information, as would induce a belief in the mind of a prudent, discreet man, that the crime had been committed, and by the man he was about to prosecute; and this belief may be based purely upon circumstantial evidence, both as to the corpus delicti and the probable guilt of the party accused.
    2. Same. Same. The question'in an action for malicious prosecution is not whether the plaintiff in such action be really guilty of the crime alleged against him, but whether reasonable grounds existed for the defendant to believe him so. It might often turn out that no crime had, indeed, been committed, and yet the prosecutor be justifiable, because of the existence of reasonable grounds to believe that the crime had been committed, and that the party accused was the guilty agent.
    3. Action for Malicious Prosecution. Its application. The action for malicious prosecution is only intended to apply to cases where a criminal accusation has been made against an innocent man through malice, and in the absence of even a fair and reasonable probability of its truth. In such case the criminal law is grossly abused, and for the most unworthy purposes, and condign punishment in the way of damages, should be inflicted.
    FROM MARION.
    The plaintiff in error instituted a criminal prosecution against the defendant in error before a justice of the peace in Marion, on a charge of larceny. The defendant in error was discharged by the justice, and the prosecutor taxed witli costs; whereupon the defendant brought this action in the circuit court of Marion for malicious prosecution, and at the November Term, 1852, recovered a verdict and judgment for $275. A motion for a new trial being made and overruled, the plaintiff in error appealed. There was much circumstantial proof adduced on the trial to show probable cause for the prosecution, which, it is unnecessary here to recite. The error assigned, is in the charge of his Honor, Judge Keith, to the jury, which is as follows: “In an action for a malicious prosecution for a felony, where want of a probable cause is to be inferred fromthe fact of a discharge of the prisoner, the burthen of proving the probable cause lies on the defendant. It is a compound question of law and fact, and to make it out he must establish, by direct evidence, that the felony charged has been committed, and show facts and circumstances pointing to the plaintiff as the person who has committed the felony.”
    _ Smith, for plaintiff in error,
    with whom was Hyde, who said:
    1st. In an action of malicious prosecution, whether the circumstances alleged to show probable cause for the prosecution are true and existed, is a question of fact for the jury. If true, whether these facts and circumstances amounted to a probable cause is a question of law for the court. This rule was laid down in the leading-case of Johnson vs. Sutton, 1 Term R., 510, and has been approbated and sustained by" the courts of England and this country up ,to this time. (See Mkmns vs. Divpont, 1 Am. Leading Cases, 209.)
    2. The charge that direct testimony is essential to establish the felony charged in the warrant, in order to make out probable cause, was, in effect, excluding from the jury any consideration of- the truth or existence of the facts and circumstances relied upon in defense, because no direct or positive evidence of the commission of the felony was adduced before the jury, hut the evidence upon the fact of a larceny having been committed was purely circumstantial.
    3. That the felony must be established by direct or positive evidence in an action of malicious prosecution for a felony, is, we insist, opposed to the whole current' of authority upon the subject. Probable cause not only embraces the fact of a felony having been committed, but the circumstances pointing to the party accused; /and whether this combination of facts and circumstances / amounts to probable cause, depends upon the belief of ' the prosecutor, supported by such circumstances as would induce a reasonable man to believe the person charged guilty of the offence. See 1 Am. Leading Oases, 221. In another case it is said, “any thing which will create in the mind of a reasonable man the belief that a felony existed, and that the party charged was connected with it, is probable cause.’* Id. 221. The question of probable cause does not turn upon the actual guilt or innocence of the accused, but on the prosecutor’s belief upon reasonable ground. It matters not how innocent the plaintiff may have been, probable cause rests upon /the facts known to the prosecutor at the time the prosecution was begun. Again, probable cause is defined to be “ a deceptive appearance of guilt arising from facts and circumstances misapprehended or misunderstood, so far as to produce belief, and not to depend on facts, ^but the belief of them.” Id. 221. In the case of Fwr-ris vs. Starlde, 3 Monroe, 11, the court says: “ The question is not whether the plaintiff was actually guilty, but whether the defendant had reasonable grounds, from the facts known to him, and the communications made to him, to believe him so.” See same authority and cases referred to. See also, Sail vs. ScmJcms, 5 Hum., 537. If the authorities above referred to are to he regarded as law, a man may well prosecute upon information derived from others if the information is of a character to excite reasonable belief, and comes from a source entitled to credit. In this case, the witnesses who depose to the facts from which a felony may be inferred, could not positively swear that the articles charged to be stolen were actually taken; they might be mistaken in the difference of three or four inches in the height of the stock of middlings, or be mistaken in the number of lumps of salt left; probably some mischievous person, in a prank, might have made all the signs discovered, and carried nothing away; yet, they believed a larceny had been committed, and communicated it as a fact to Raulston, who, himself, examined the condition of the roof, and saw the spots of grease on the hen-house and scythe, all going to corroborate the statement made to him. This statement made to Raulston, in connection with the • corroborative signs, we insist, was sufficient to create the belief in a reasonable mind, that a larceny had been committed, and great injustice was done to the plaintiff in error in not leaving the facts open to the jury in this light.
    Mrasns, for the defendant in error,
    said:
    ' The only question in the case, and the question made below, and upon which this cause was brought to this court, is, whether the acquittal by the justice in a felony, and the taxing the prosecutor with the cost, is jorima facie evidence of a' want of probable cause, and throws the burthen of showing probable cause on the defendant. We maintain the affirmative, and this view was sustained by the court below. It is so laid down by Starkie on Evidence, and most of the elementary works, and so held 'by this court in the case of WilUmns vs. Norwood, 2 Yerg., p. 329, upon the authority of Johnson vs. Ma/rtm, 3 Murph., B., 348. And it is believed this doctrine has never been questioned in this State since the case of WilUmns vs. Nor-wood, until this case.
    In this case it could not have had any material bearing on the jury, as all the circumstances of the original charge were before the jury, and their verdict rendered upon the whole case. But we insist the doctrine was correctly laid down by the circuit judge.
   CaRUTheRS, J.,

delivered the opinion of the court.

The defendant prosecuted the plaintiff for larceny. The magistrate discharged Jackson and taxed Baulston with the cost. This suit was then instituted for malicious prosecution, and a verdict recovered in the circuit court of Marion for $275.

The only question here made, which it is material to examine, is upon this part of the charge of his Honor, the circuit judge: “ To make out his defense, the prosecutor must establish, by direct evidence, that the felony charged in the warrant has been committed, and show facts and circumstances pointing to the plaintiff as the person who has committed the felony.”

It is not the law that in order to justify the institution of a criminal proceeding for felony, the prose-eutor must be able to prove by direct evidence, that a felony was perpetrated, any more than that tbe person charged is the perpetrator. Circumstantial or presump^ five evidence will be sufficient on both points. Surely if conviction can be founded on the proof of circum- " stances, it shall not be required of one who has insti-1 tuted a prosecution and failed to sustain it, to do more ^ in making out his defense to an action of malicious \ prosecution, than to establish the corpus delicti by the same description of evidence. Direct and positive, as applied to evidence, are generally understood as con-vertable terms. The jury, under this charge, could not find for the defendant, unless he was able to prove, and that by direct or positive evidence, not circumstantial, though equally convincing to them, that the crime of larceny had been committed by some person. This was erroneous, and may have been fatal to the defense before the jury. The law on this point is, and should have been so charged by the judge, that if the jury found from the proof, that the defendant, at the time he instituted the prosecution, acted upon such a state of facts known to him, or derived from reliable information, as would induce a belief in the mind of a prudent, discreet man that the crime had been committed and by the person he was about to prosecute, he was not liable.

The question is not whether the defendant is really guilty, but was there good and reasonable grounds for the prosecutor to believe he was. This enquiry necessarily involves two points: first, as to the existence of the crime, and secondly, the connection of the defendant with it. There can certainly be no distinction in the character or measure of evidence required to establish them. Instead of requiring direct evidence of the fact of the crime, it may certainly often hapjxen that no crime was in fact committed,- and yet the prosecutor justifiable, because of the existence of probable or reasonable grounds to believe the criminal act had been done, and by the accused. If men were not allowed f to act upon such grounds, crimes would often go unpunished for want of prosecutors. This action is only intended to apply to cases where a criminal accusation is made against an innocent man through malice, and in the absence of even a fair and reasonable probability of its truth. In such a case the criminal law is grossly abused for the most unworthy purposes, and condign punishment, in the way of damages, should be inflicted.

Judgment reversed and a new trial awarded.  