#### Finley, Appellant, v. St. Louis Refrigerator & Wooden Gutter Company *et al.*

1. Illegal Arrest, Action for: defense. Plaintiff cannot recover in an action for illegal an-est, where his own evidence shows that the arrest and imprisonment were made in due course upon regular proceedings of a court having complete jurisdiction of the offense charged.

-: -. Where the finding in such case is for the defend. ant, the supreme court will not review the instructions.

*5608. Malicious Prosecution: evidence. Where in. a count of a petition for malicious prosecution, the plaintiff charges, as an element of damages, injury to his good name and reputation in his business as a carpenter and builder, he cannot complain of the admission of evidence on defendant’s behalf to the effect that he was not of good business credit and repute.

*é.*-. It is not essential to a recovery by plaintiff in an action for malicious prosecution that he show that defendant commenced and continued the prosecution maliciously; if it was so commenced or continued it is sufficient.

*Appeal from Si. Louis City Circuit Court.*— Hon. George W. Lttbke, Judge.

Reversed and remanded.

*F. F. Stone*for appellant.

(1) The court erred in refusing plaintiff ’ s instruction number 10 (page 67 of transcript). There ivas no-conflict in the evidence as to the new contract between plaintiff and defendants extending the time of payment. This was a vital point in the case, and the-refusal of the court so to instruct the jury was-error, most prejudicial to the plaintiff’s case. (2) Plaintiff’s instruction number 11, refused by the-court, was fully warranted by the evidence, was a correct declaration of the law applicable to the facts-proved, was proper and necessary for the vindication of plaintiff’s rights, and should have been given. ' *Sharpe v. Johnston,*59 Mo. 557, s. c., 76 Mo. 660, and .cases cited. (3) The court erred in giving defendant’s-instruction number 7. . The credit of plaintiff was • not an issue raised by the pleadings, but, even had it been an issue in the case, is it not an astounding proposition of law that instructs the jury “to take the same into consideration for the purpose of rebutting the want of probable cause” for procuring the arrest of plaintiff on the charge of larceny *i*(4) The court erred in giving defendants’ instructions numbers 1, 2, 3 and 5. (5) The court erred in giving instruction number 1 of its-*561own motion. *Sioigert v.*Railroad, 75 Mo. 475; *Allen*». Mansfield, 82 Mo. .688. (6) The verdict of the jury is. against the law as declared in plaintiff’s instruction, number 6. *Sappington v.*Watson, 50 Mo. 83; *Sharpe v.*Johnston, 59 Mo. 557; *Donnelly*«. Daggett, 14 N. E. [Mass.] 161. (7) The court erred in permitting proof of specific facts of indebtedness of plaintiff. *Degenhardt D.*Schmidt, 7 Mo. App. 117.

*Campbell & Ryan*for respondents. •

(1) The questions tried below were, did the defendants, when they began the prosecution, believe Finley guilty of the offense charged, and had they reasonable grounds for that belief; that is, was their belief based upon circumstances sufficiently strong to induce such belief in the mind of a reasonable and cautious man ? These facts, if proven, constituted a complete defense to the action. *Van Sickle v.*Brown, 68 Mo. 627;. *Sparling v.*Conway, 75 Mo. 512; *Sharpe v.*Johnston, 76 Mo. 660. (2) The burden was upon plaintiff to prove that the prosecution was instituted wilfully, falsely, maliciously and without probable cause. *Sappington v. Watson,*50 Mo. 83; *Sharpe v.*Johnston, 76 Mo. 660; *Burris v.*North, 64 Mo. 426. (3) Malice need not be directly proven, but may be inferred from want of probable cause; but if there was probable cause for the prosecution and belief by the prosecutor in the guilt of the accused, the motives for the prosecution, whether malicious or otherwise, are immaterial. *Sharpe v. Johnston,*76 Mo. 660-669; *Mesenberg v. Engelke,*18 Mo. App. 346; *Renfro v.*Prior, 22 Mo. App. 403. (4) Where there is an honest belief in the guilt of a person, and probable cause to so believe, advice of counsel is not necessary to shield the prosecutor when attacked in a action of this kind, nor can such advice be admitted in evidence to show the existence of probable *562cause. Its only purpose is to overthrow a presumption of malice which arises where probable cause is not shown. *Sparling v. Conway,*75 Mo. 510-513.

Per Curiam.

This case presents two causes of action; the first, for an “unlawful and wrongful” arrest and imprisonment, and the second for malicious prosecution of the plaintiff in the St. Louis court of criminal correction, on a charge of obtaining money by false pretenses. The-answer was a general denial.

At the trial, plaintiff’s evidence disclosed that he had been arrested upon a warrant, regularly issued in a criminahprosecution before the St. Louis court of criminal correction, upon information duly filed.

The court admitted, against plaintiff’s objection, evidence that he was not of good credit at the time of the prosecution.

It also gave among the instructions, at defendants’ instance, the following:

“3. Although the plaintiff succeeds in satisfying you, from the evidence, that the prosecution complained of was commenced by defendants without probable cause, yet you will find your verdict for the defendants unless you further find from the' evidence that the defendants commenced and continued the prosecution against the plaintiff maliciously.”

There was a finding for defendants on each of the two causes of action, and judgment accordingly, from which plaintiff appealed after the ordinary preliminaries.

The evidence did not support plaintiff’s first cause of action. It was predicated on the illegality of plaintiff ’ s arrest; but his own evidence revealed that the arrest and imprisonment complained of were made in due course upon regular proceedings of a court having complete jurisdiction of the offense charged. No cause of action for false imprisonment could be maintained on *563his own showing. It is, hence, unnecessary to consider any error assigned by plaintiff: with reference to that court, as the finding for defendants thereon was for the right party and will not be disturbed.

II. As to the second cause of action, plaintiff complains of the admission of defendants’ evidence to the effect that he was not of good business credit and repute at the time of the alleged malicious prosecution. But, as that count expressly mentions injury to his good name and reputation “in his business as carpenter and builder” as an element of damage, we have no doubt of the correctness of the ruling of the trial court on that point.

An error, however, was made in the instruction for defendants which told the jury to find for them unless they found from the evidence that defendants ‘ ‘ commenced and continued the prosecution against the plaintiff maliciously.”

Malice is an essential fact to be proven to maintain an action for malicious prosecution, though it may often be inferred as a fact from the proofs which establish a want of probable cause; but it was not vital to plaintiff’s recovery that he should show that defendants commenced and continued the prosecution maliciously. If he proved that it was either so commenced or continued by them, it would be sufficient to support his case under the pleadings and evidence. The instruction in question required plaintiff to bear a greater burden of proof than the law, in strictness, demanded.

It is, hence, necessary to reverse the judgment and the finding on the second count of the petition, and to remand the cause for a new trial thereon. The finding on the first count is affirmed.

The other points of criticism on the instructions can doubtless be avoided on a retrial, and therefore do not call for remark at present.

The costs of this appeal will abide the event of the action.