Hitson v. Forrest , 12 Tex. 320 ( 1854 )

Wheeler, J.

In the instructions given by the Court, and in the rulings upon those asked by the defendant, a prominence and importance were given to the motives and intentions of the defendant, in instituting the prosecution, which necessarily made these the controlling consideration in the estimation of the jury in deciding upon the right of the plaintiff to recover. It does not require comment upon the language of the charge, to render it perfectly clear and indisputable, that the jury were given clearly to understand, that the liability of the defendant depended upon the motives by which he was actuated ; and that if he was actuated by malice, and a desire for revenge, that was sufficient without more, to fix his liaUtility for whatever injury the plaintiff may have sustained by reason of the prosecution. It does not admit of controversy, that the case was made to turn solely on the malice, the quo animo, the motives and intentions of the defendant. Yet, nothing can be better settled than that it is not enough that the prosecution may have been malicious ; it must also have been without probable cause. “ The plaintiff must also show, “ that the prosecution was instituted maliciously, and without “probable cause; and both these must concur. If it were “ malicious, and unfounded, but there was probable cause for “ the prosecution, this action cannot be maintained.” (2 Greenl. Ev. Sec. 453; 2 Stark. Ev. 680 ; 7 Tex. R. 603 ; 8 Id. 151.) And, in his defence, the defendant is not confined to the evidence given in the prosecution ; but he may show that he acted bona fide upon the opinion of a professional adviser ; and, in a word, “ the defendant may give in evidence “ any facts which show that he had probable cause for prose- “ cuting, and that he acted bona fide, upon that ground of “ suspicion.” (2 Stark. Ev. 685, 7th Am. from 3rd London Edit.; 7 Tex. R. 610 to 612.) But “ it must appear that the “ facts, or so much of them as was sufficient to induce the be- “ lief, were communicated to the defendant, before ho com“menced the prosecution.” (2 Greenl. Ev. Sec. 454.)

The law is too well settled upon the questions presented by the record, to require a more particular examination and consideration of them, in reference to the arguments of counsel.

In answer to the argument of counsel for the appellee, upon the credibility of witnesses, and the weight to which the statements of particular witnesses were entitled, in their variant and conflicting testimony, it will suffice to observe, that these were questions exclusively for the consideration of the jury ; and which can with no propriety be drawn into discussion in this Court.

We are of opinion that the Court erred in the instructions to the jury, and that the judgment be therefore reversed and the cause remanded for further proceedings.

Reversed and remanded.