
    Amos Morrell v. Anna Belle Martin.
    1. Instructions—False imprisonment.—The instruction upon false imprisonment is erroneous in that it omits the necessary qualification “that unless the restraint or detention was by virtue of a valid process or warrant against her issued by proper lawful authority.”
    2. Instructions—Malicious prosecution.—An instruction that the prosecution of a person criminally, with any other motive than that of bringing a guilty person to justice, is a malicious prosecution. Held, erroneous. To maintain such action there must he no probable cause and malice concurring.
    Error to the Circuit Court of Effingham county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed November 27, 1885.
    Mr. S. F. Gilmore, Mr. J. 0. White, and Messrs. Wood Bros., for plaintiff in error. ■
    Mr. ¡R. 0. Harrah and Mr. B. F. ¡Kagay, for defendant in error.
   Green, J.

In this case defendant in error brought her action in the conrt below, against plaintiff in error, and in her declaration of seven counts, sets up a cause of action in case, for malicious prosecution in the four first, and trespass vi et armis for false imprisonment in the remaining three counts. Defendant below interposed a plea of “not guilty ” to the whole declaration, with a special plea of justification to the 5th, 6th and 7th counts, setting up that Morrell went before "Williamson, a justice of the peace, and made oath that defendant in error, on January 8, 1885, at the house of Nancy Martin, did commit a misdemeanor, to wit: that defendant in error had been guilty of disorderly conduct; that said justice did thereupon issue his warrant for her arrest, which warrant was delivered to Byan, a constable, to execute, who without the presence, advice, or assistance of Morrell, did arrest her on the same day, by virtue of said warrant, and brought her before said justice ; that said Morrell had just and reasonable grounds for believing her to have committed said misdemeanor, and that the above are the several supposed trespasses, etc. Beplications traversing said pleas were filed by plaintiff below, issue joined and trial by a jury had, which rendered a verdict for plaintiff below for 8500; whereupon, Morrell moved for a new trial; which motion was overruled and judgment was rendered against him by the court below on the verdict, to reverse which judgment this writ of error vras sued out.

The disorderly conduct alleged, as insisted upon by defendant below on the trial, was that defendant in error had intruded herself into the house of Nancy Martin, and upon being requested by the latter to leave, had refused to do so, and had conducted herself there in a disorderly manner, using profane language, etc. Defendant in error on her part insisted that she visited said house (which was the residence of her husband’s mother, Nancy Martin), to see him, or ascertain from the family there where he was, and was not guilty of disorderly conduct and did not use profane language there. As usual in such cases there was a conflict of evidence, and some of the testimony tended to prove disorderly conduct on the part of the defendant in error, as alleged, while other of the testimony negatived such charge. Inasmuch as the case will be tried by another jury, we deem it unnecessary to express our opinion upon the merits of the case, or to allude to the evidence, except to say that the error assigned for admitting improper evidence on the part and behalf of plaintiff below (which it is claimed the court did) is not well assigned, but so far as the record discloses, no objection was made at the trial, on behalf of defendant below, to the admission of any evidence except such as was competent, and tended to show that defendant in error was informed her husband had gone to Nancy Martin’s, and acting on such information, had called there to inquire for him, and ascertain his whereabouts on the occasion when it is alleged she acted in a disorderly manner, thus explaining and giving a reason for such call, and negativing the charge that she intruded herself there without right. But the court below erred in giving several of the instructions given to the jury on behalf of the plaintiff below. The 4th of these instructions informs the jury that if Morrell, at any time, place or manner, restrained plaintiff of her liberty, or detained her in any manner from going where she wished, or prevented her from doing what she desired, or counseled, advised or procured such restraint or detention, that would be sufficient to sustain her charge of false imprisonment against Morrell. This instruction omits the very necessary qualification “unless such restraint or detention was by virtue of a valid process or warrant against her, issued by proper lawful authority.” The instruction 4J is erroneous and ought not to have been given, because it is not confined in its application to the counts in case in plaintiff’s declaration, and it would not be applicable to the counts in trespass vi et cmnis / and also because in the last clause of said instructions, the jury are informed if they believe certain facts they shall find for the plaintiff, without being required to so believe from the evidence. The 8th of these instructions is as follows: “ The jury are instructed that the prosecution of a person criminally, with any other motive than that of bringing a guilty person to justice, is a malicious prosecution.”

This instruction does not state the law as we understand it. A person may entertain malice against another, and moved by that feeling, institute a prosecution for a crime against the obj ect of his hatred; and if the latter is guilty of such crime, or if the one instituting such prosecution has probable cause for believing him guilty thereof, an action for malicious prosecution will not lie. To maintain such action there must he no probable cause and malice concurring. The 9th and 10th of these instructions are not accurate, but as they will probably he amended before being given, if another trial should be had, we will not lengthen this opinion by discussing them, nor by the citation of authorities in support of the objections to the other instructions herein mentioned. It is sufficient to say that the giving of them was error and was calculated to mislead the jury, and for such error the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.'  