
    William C. Keating, Respondent, v. George Fitts, Appellant.
    
      Malicious prosecution—failure to prone want of probable cause—-identity.
    
    Where, upon the trial of an action for malicious prosecution, the plaintiff, fails to take the stand as a witness, and merely produces evidence of an alibi and that the defendant had refused to press the criminal prosecution .against him, and gives no direct evidence that the plaintiff was not the person alleged by ■the defendant to have stolen his money, the plaintiff was considered, under the circumstances of the case, to have failed to show that the defendant did not have probable cause to believe that the plaintiff and the person whom he accused were identical.
    Appeal by the defendant, George Fitts, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 24th day of October, 1895, upon the verdict of a jury rendered after a trial at. the Cortland Circuit, - and also from an order entered in said clerk’s office on the llth day of October, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      S. D. Halliday, for the appellant.
    
      John D. McMahon, for the respondent.
   Landon, J.:

The action was in form both, for false imprisonment -and for malicious prosecution, but was tried and determined as. an action for malicious prosecution. Two persons, strangers to the defendant, one of whom told the defendant that his name was Boardman, and that he 'was a nephew of the late Justice Boardman, of this court, by trick. and device commonly called the “ bunco game ” stole $6,000 in money from the defendant on the 25th of September, 1891, on the highway near defendant’s home, in Cortland county. Afterwards the defendant, upon statements made to him by a man calling himself Norris, claiming to be a detective, and that he knew that a man known as Bed Austin, or Charles Davis, had robbed him, ■went with Norris to the district attorney of the county and consulted him, and then made information giving full particulars before a magistrate, charging the commission of the crime of larceny, and charging “ Charles Davis, alias Bed Austin, alias Boardman,” as the person who committed it. Thereupon the magistrate issued his "warrant for the arrest of ‘ • Charles Davis, alias Bed Austin, .alias Boardman,” upon said charge of larceny. We cannot hold upon the evidence that this warrant was issued improperly. The crime, had been committed as charged, and the evidence leaves little room for doubt that the person designated in the warrant—- as section 152, Code Criminal Procedure, permits — committed it. The practical difficulty in this case arises from the fact that the plaintiff was mistaken for the person named in the warrant, was arrested, committed to jail, indicted, and finally discharged without trial, after six and a half months’ confinement in jail. The defendant and other witnesses, who at first were confident of the plaintiff’s identity with the real criminal, finally, after seeing another person in the Goshen jail called “ Bed Austin,” weakened in their confidence, and said that they were probably mistaken in their first opinions.

There is no direct evidence that the plaintiff is not the person who ¡stole the defendant’s money. The plaintiff himself did not take the ¡stand as a witness. He produced evidence by others .of an alibi> ¡and that’ the defendant had refused to press the criminal prosecution ¡against him, thus inducing the inference that his..arrest and.prose■cution were unjustifiable. We think, in view of the circumstances, ¡and especially of the evidence touching the identification of the plaintiff with the man Boardman, that the plaintiff, failed to show that the defendant did not have probable cause to believe that the plaintiff and the person accused by him in his information were identical, and thus that the charge of malicious prosecution was not made out. Whether the verdict in plaintiff’s favor could be sustained upon the ground of mistaken identity, and thus of false imprisonment, we do not feel at liberty to inquire, since the jury, under the charge of the court which followed the course of the trial and theory of the prosecution, did not render their verdict upon the charge of false imprisonment.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, except Parker, P. J., not sitting.

Judgment and order reversed and new trial granted, costs to abide the event.  