cused otherwise than by his discharge by the grand jury or the committing magistrate, it is generally agreed that such termination is not evidence of the absence of probable cause. It is therefore held that although the plaintiff proves a verdict of acquittal and a judgment in his favor thereon, he must still offer some evidence tending to show that his prosecution was without probable cause.32 The same evidence sometimes tends to show both want of probable cause and malice, and when it does not tend to show both it may nevertheless be admissible as tending to show one. No general rule can be laid down as to what evidence is admissible to show want of probable cause other than the rule that if it legitimately tends to show that fact and is not rendered inadmissible by some rule of exclusion it should be received. Illustrative cases are cited below33 and others will be referred to in subsequent sections.

§ 2476. Evidence of probable cause.-As a general rule, the conviction of the plaintiff is not only evidence, but is while it remains in force, conclusive evidence of probable cause. But evidence that he

32 Grant v. Deuel, 3 Rob. (La.) 17, 38 Am. Dec. 228; Bitting v. Ten Eyck, 82 Ind. 421, 42 Am. R. 505; Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Boeger v. Langenberg, 97 Mo. 390, 10 Am. St. 322, 11 S. W. 223; Stewart v. Sonneborn, 98 U. S. 187; Ullman v. Abrams, 9 Bush. (Ky.) 738; Purcell v. MacNamara, 9 East 361, 1 Camp. 199; Sweeney v. Perney, 40 Kans. 102, 19 Pac. 328; as to the failure to succeed in a civil suit alleged to have been maliciously prosecuted, see, Stewart v. Sonneborn, 98 U. S. 187; Kolka v. Jones, 6 N. Dak. 461; Hay v. Weakley, 5 Car. & P. 361, 24 E. C. L. 361.

33 Schofield v. Ferrers, 47 Pa. St. 194, 86 Am. Dec. 532; Lawrence v. Leathers, 31 Ind. App. 414, 68 N. E. 179; Gould v. Gregory, (Mich.) 95 N. W. 414; Tabert v. Cooley, 46 Minn. 366, 49 N. W. 124. Evidence of conversations at the time of executing a written contract is not

rendered inadmissible by the parol evidence rule when introduced for the purpose of showing want of probable cause for the arrest of the plaintiff on the claim that he had obtained money under false pretenses in procuring the execution of such contract: Whitehead v. Jessup, 2 Colo. App. 76, 29 Pac. 916; see also, Walker v. Camp, 69 Iowa 741, 27 N. W. 800.

34 Blackman v. West Jersey &c. R. Co., 126 Fed. 252; Crescent City Co. v. Butchers Co., 120 U. S. 141, 7 Sup. Ct. 472; Griffis v. Sellars, 3 Dev. & B. L. (N. Car.) 492, 31 Am. Dec. 422; Adams v. Bicknell, 126 Ind. 210, 25 N. E. 804; Ross v. Hixon, 46 Kans. 550, 26 Pac. 955, 12 L. R. A. 760, 26 Am. St. 123, and numerous authorities cited in note; see also, as to civil actions, Crescent City &c. Co. v. Butchers &c. Co., 120 U. S. 141. 7 Sup. Ct. 472; Short v. Spragins, 104 Ga. 628, 30 S. E. 810; Clement

was held to answer or bound over by an examining magistrate or indicted by the grand jury, while usually admissible and generally treated as prima facie evidence of probable cause, it is not conclusive.35 Although it is generally held that one who is shown to have been guilty of the offense charged cannot maintain an action for malicious prosecution, yet as a general rule the defendant cannot justly claim to have had probable cause unless he had some knowledge of the facts at the time he prosecuted the plaintiff, and it is therefore held that although there were other existing circumstances of which he afterwards became aware, and which, had he known them at the time, would have strengthened his conviction and made it more reasonable, yet as he, from not knowing them, could not have acted upon them, evidence of them should not be received to show that he had probable cause and justify his action.36 But where the defendant not only relied on statements contained in a letter from a third person, but also calls upon such third person to testify in support of such statements, the plaintiff, on cross-examination of such person, has the right to show their falsity although the defendant believed them to be true.37 It has also been held that the effect of circumstances, known to the prosecutor, though weakened by other explanatory or exculpatory facts of which he had no knowledge or notice, may tend to establish the existence of probable cause.38 But information upon which the defendant acted in instituting the prosecution may be shown when it tends to prove probable cause and show his good faith, and, as elsewhere explained, the admission of such evidence introduced for that purpose is not in viola

v. Odorless &c. Co., 67 Md. 461, 1 Am. St. 409; Dolan v. Thompson, 129 Mass. 205.

Ross v. Hixon, 46 Kans. 550, 26 Pac. 955, 12 L. R. A. 760, 26 Am. St. 123; Diemer v. Herber, 75 Cal. 287, 17 Pac. 205; Ricord v. Cent. Pac. R. Co., 15 Nev. 167; Peck v. Chouteau, 91 Mo. 138, 60 Am. R. 236; and note in, Ross v. Hixon, 46 Kans. 550, 26 Am. St. 158. So the disagreement of the jury is prima facie evidence of probable cause; Johnson V. Miller, 63 Iowa 529, 50 Am. R. 758, 17 N. W. 34.

36 Harkrader v. Moore, 44 Cal. 144; Thompson v. Beacon &c. Rubber Co., 56 Conn. 493, 16 Atl. 554;

Delegal v. Highley, 2 Bing. N. Cas. 959; Louisville &c. R. Co. v. Hendricks, 13 Ind. App. 10, 40 N. E. 82; Pennsylvania Co. v. Weddle, 100 Ind. 138; Galloway v. Stewart, 49 Ind. 156, 19 Am. R. 677; Turner v. Ambler, 10 Q. B. 252, 59 E. C. L. 252, 6 Jur. 346, 11 L. J. Q. 158; Three-foot v. Nuckols, 68 Miss. 116; Bell v. Pearcy, 5 Ired. L. (N. Car.) 233; McIntire v. Levering, 148 Mass. 546, 12 Am. St. 594, 20 N. E. 191; Josselyn v. McAllister, 25 Mich. 45. 37 Lawrence v. Leathers, 31 Ind. App. 414, 68 N. E. 179.

38 King v. Colvin, 11 R. I. 582; Swaine v. Stafford, 4 Ired. L. (N. Car.) 392.

tion of the hearsay rule, although it consists of the statement of others.39

§ 2477. Evidence of good reputation of plaintiff.-It has been said in two or three cases that the plaintiff in an action for malicious prosecution ought not to be allowed to prove that his reputation before the prosecution was good.40 But, certainly if the defendant is permitted to show that the reputation of the plaintiff was bad both on the question of damages and as tending to show probable cause or a belief of guilt it would seem that the plaintiff should be allowed to show his good reputation and most of the authorities so hold." Indeed, it is held that such evidence, where the good reputation of the plaintiff is known to the defendant, or ought to have been and is presumptively known to him, is admissible for the plaintiff in chief and not merely in rebuttal.+2

§ 2478. Evidence of bad reputation of plaintiff.-As the injury to the reputation of one whose reputation is already bad is not, ordinarily at least, so great as if his reputation had been good, and as one may well be more likely to entertain a reasonable belief in the guilt of a person of bad reputation, evidence of the bad reputation of the plaintiff before the charge was preferred against him is generally held admissible both in mitigation of damages and as tending to show that his prosecution was not without probable cause, at least where it was known to the defendant.43 It has also been held that the defendant is entitled to show that when the plaintiff was arrested he

39 Vol. I, § 324.

40 Kennedy v. Holladay, 25 Mo. App. 503; Skidmore v. Bricker, 77 Ill. 164.

41 Blizzard v. Hays, 46 Ind. 166, 15 Am. R. 291; Pennsylvania Co. v. Weddle, 100 Ind. 138; Woodworth v. Mills, 61 Wis. 44, 50 Am. R. 135, 20 N. E. 728; San Antonio &c. R. Co. v. Griffin, 20 Tex. Civ. App. 91; Coleman v. Heurich, 2 Mackey (D. C.) 189; Ross v. Innis, 35 Ill. 487, 85 Am. Dec. 373; Israel v. Brooks, 23 Ill. 526.

42 McIntire v. Levering, 148 Mass. 546, 20 N. E. 191, 12 Am. St. 594;

Woodworth v. Mills, 51 Wis. 44, 50
Am. R. 135, 20 N. E. 728; Funk v.
Amor, 4 Ohio C. C. 271, 2 Ohio Dec.
541.

43 Rosenkrans v. Barker, 115 Ill. 331, 56 Am. R. 169, 3 N. E. 93; Martin v. Hardesty, 27 Ala. 458, 62 Am. Dec. 773; Fitzgibbon v. Brown, 43 Me. 169; Rodriguez v. Tadmire, 2 Esp. 721; Miller v. Brown, 3 Mo. 127, 23 Am. Dec. 693; Gee v. Culver, 13 Ore. 598, 11 Pac. 302; Pullen v. Glidden, 68 Me. 559; see also, Hiersche v. Scott, (Neb.) 95 N. W. 494.

44

46

was in the company of a person of bad character, and thereby exposed himself to suspicion. In Wisconsin, while the general rule is not questioned it has been held that evidence of such reputation is not admissible under the general issue. The plaintiff is not required however to meet charges of specific offenses; nor can the defendant support his defense of probable cause by proving that though the plaintiff did not commit the crime of which he was accused, yet that he did at or about the same time commit another and entirely different offense.* But when a guilty knowledge is essential to the crime of which the plaintiff was accused, it has been held that the defendant may prove facts and circumstances, known to him at the time of the prosecution, sufficient to create a belief in the mind of a reasonable man, and in fact creating a belief in the defendant's mind, that the accused had committed other offenses like that for which he was prosecuted.48

47

§ 2479. Evidence as to malice.-A prosecution is malicious when actuated by personal hostility and ill-will or vindictive motives, and proper evidence thereof is admissible." And such ill-will or malice may be shown by conduct as well as words. 50 So, evidence of prior unfriendly relations has been held competent upon the question.51 But malice in this connection is not confined to ill-will or the like. It includes any improper sinister and wrongful motive for instituting the proceeding. It need not be shown by direct and positive testimony, but may be inferred from circumstances and established by circumstantial evidence.52 Proper evidence of the acts, conduct, and declarations of

"Hitchcock V. North, 5 Rob. (La.) 328, 39 Am. Dec. 540.

45 Scheer v. Keown, 34 Wis. 349. Gregory v. Thomas, 2 Bibb. (Ky.) 286, 5 Am. Dec. 608; Rodriguez v. Tadmire, 2 Esp. 721; O'Brien v. Frasier, 47 N. J. L. 349, 54 Am. R. 170.

"Carson v. Eggeworth, 43 Mich. 241, 5 N. W. 282; Sutton v. McConnell, 46 Wis. 269, 50 N. W. 414; Chrisman v. Carney, 33 Ark. 316.

48 Thelin v. Dorsey, 59 Md. 539; Thomas v. Russell, 9 Ex. 764.

49 Caddy v. Barlow, 1 M. & R. 275; Langley v. East River Gas Co., 41 App. Div. (N. Y.) 470; Christian v. Hanna, 58 Mo. App. 37.

50 Thompson v. Force, 65 Ill. 370; Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728, 50 Am. R. 135; Wild v. Odell, 56 Cal. 136; Garvey v. Wayson, 42 Md. 178.

"Lyon v. Hancock, 35 Cal. 372; Parker v. Parker, 102 Iowa 500, 71 N. W. 421; Bruington v. Wingate, 55 Iowa 140, 7 N. W. 478; Thurston v. Wright, 77 Mich. 96, 43 N. W. 860; see also, Clark v. Folkers, 1 Neb. 96, 95 N. W. 328.

52 Lunsford v. Deitrich, 93 Ala. 565, 9 So. 308, 30 Am. St. 79; Lemay v. Williams, 32 Ark. 166; Blass v. Gregor, 15 La. Ann. 421; Christian v. Hanna, 58 Mo. App. 37; Brooks v. Jones, 11 Ired. L. (N. Car.) 260;

the defendant with regard to the plaintiff and the proceedings complained of is admissible. Thus it may be shown that the defendant was active and zealous in pushing the prosecution against the plaintiff. So, evidence of successive suits by the defendant on the same groundless claim or successive complaints of attempts to prosecute on the same charges is admissible to show malice.55 Again, evidence that the accomplishment of some personal or private end was sought by a criminal prosecution is admissible,50 and it has also been held competent to take into consideration the insignificance of the amount in