
    Commonwealth vs. Jacob W. Vaughan.
    A. was tried for maliciously burning a barn of B., and there was evidence implicating C. in the offence. To show malice on the part of C. towards B., the prosecution proved that he had, before the fire, commenced a criminal prosecution against B., on which the latter was discharged. Held, that A. could not show, in order to disprove malice, that such prosecution was founded on probable cause.
    The defendant was tried before Bishop, J., in the court of common pleas, for maliciously burning the barn of Jason Powers. Under the ruling of the judge, excluding certain evidence offered by the defendant, he was found guilty, and filed his bill of exceptions to this court. The nature of the testimony offered and rejected, is stated in the opinion.
    
      C. Delano, for the defendant.
    Clifford, (attorney-general,) for the Commonwealth.
   Shaw, C. J.

We can perceive no sufficient ground to sustain these exceptions. On an indictment of the defendant, for the wilful burning of the bam of one Powers, evidence had been offered to implicate one Stacey with him, and to show conspiracy between them. To show malice on the part of Stacey towards the prosecutor, Powers, he had been asked by the counsel for the government, whether sometime before the fire, Stacey had instituted a criminal prosecution against him. Having answered that Stacey did commence such prosecution against him, from which he was discharged, the counsel for the defendant put questions to the witness, to show that such prosecution was founded on probable cause, in order to rebut malice; which was objected to and rejected. This rejection we think right; without relying much on the consideration that it would lead too far, and into the trial of a distinct issue, we think such an inquiry would be immaterial to the case on trial. It was not a question whether there was such want of probable cause and legal motive, that an action for malicious prosecution might have been sustained; and we think the authorities on the subject of malicious prosecution do not apply. It was a question of actual hatred and ill-will, which would naturally lead to a desire of revenge, and so operate as a motive. The mere fact that Stacey had commenced a criminal prosecution might have some weight, perhaps slight; but the manner in which the trial was conducted, and the testimony of the witnesses in it, were not competent.

Exceptions overruled.  