Straus v. Young

Grason, J., delivered the opinion of the Court. This action was brought for an alleged malicious prosecution, and at the trial below the plaintiff offered three prayers, the first and second of which were granted and the third conceded, and the defendant six, of which the first and fourth were rejected, the second was conceded by the plaintiff, and the third, fifth and sixth were granted, and the defendant excepted to the granting of the plaintiff’s prayers, and to the rejection of the first and fourth of his own, and the judgment being against him he took this appeal. The first prayer asked an instruction that if the. jury should find that the appellant preferred under oath a charge of larceny against the appellee before a justice of the peace, and caused him to issue his warrant for her arrest, by virtue of which she was arrested and brought before him, and after a full investigation of the preferred charge she was acquitted and discharged, that such acquittal and discharge were evidence with the other evidence in the cause, of the want of probable cause for such charge, and that it was competent for the jury to infer malice from the want of probable cause, as the same was defined in the sixth prayer of the appellant, which had been granted by the Court. We think that the prayer states correctly the propositions of law.

It is true that it is incumbent upon the plaintiff to allege and prove in an action for malicious prosecution, that the prosecution was ²⁵⁵ botli malicious and without probable causo; but the discharge of the plaintiff by the examining magistrate, is prima facie evidence of the want of probable cause, sufficient to throw upon the defendant the burden of proving the contrary. 2 Greenl. Ev., sec. 455; Secor vs. Babcock, 2 Johns’ Rep., 203; Bostick vs. Rutherford, 4 Hawks, 83 . It is also well settled that malice may be inferred from the want of probable cause. Turner vs. Walker, 3 G. & J., 386 ; 2 Greenl.

Ev., sec. 453. The second prayer of the appiellee states as legal proposition that malice can be inferred from the conduct, zeal and activity of a party in conducting the prosecution of a plaintiff, and this proposition is supported by the 453d sec. of 2 Greenl. Ev., and the case of Turner vs. Walker, above referred to. Both of the above prayers were alleged to be objectionable, because there was no proof in the cause that a charge of larceny liad been preferred by the appellant against the appellee.

As this objection was not specially made in the Court below, it cannot be heard in this Court in view of the Act of 1862, ch. 154, and the fourth rule of this Court. It was also argued that these prayers ought not to have been granted inasmuch as the nar. averred that the appellant