ON THE MERITS.
This action was brought by respondent against appellants, to recover damages for a criminal prosecution which *27he alleges was malicious. It appears by copies of an affidavit and warrant of arrest contained in the record that the respondent was first arrested for an assault upon appellant Hanson with intent to murder him, the charge being that, at Maple Valley, in King county, on the 23d day of November, 1889, the said John E. Jones did then and there shoot at the said Hanson with a pistol, intending to kill and murder him, and that he did shoot him in the leg. The arrest was made upon a warrant issued by one John F. Miller, a justice of the peace of said county, before whom Hanson made complaint. An examination washeld, and the respondent was bound over. The record shows, however, that the nature of the charge was subsequently changed, and that the respondent was indicted by the grand jury of King county for an assault upon Hanson with a deadly weapon, with intent to inflict upon hin a bodily injury, etc., and that he was tried thereon in the superior court of said county on the 14th day of February, 1890, which trial resulted in an acquittal, the jury finding a verdict of not guilty upon the evidence.
The circumstances connected with the affair are something as follows: The respondent Jones filed upon a piece of government land in April, 1889, which adjoined land owned by the appellant Jenkins. There was testimony to show that Jenkins was very desirous of obtaining title to this land himself, and that he procured the appellant Hanson to file upon it in July of said year, with an understanding that it was to be for his (Jenkins’) benefit; the intention of said parties being to either frighten Jones off the land or to defeat his filing by contest, and a contest was subsequently instituted. Jones and Hanson each had built cabins upon the land, and each one was undertaking to hold possession of it. Hanson’s cabin was torn down by some one, and, according to Jones’ testimony, Hanson came to his (Jones’) cabin upon the day the shooting occurred, where *28Jones was at work, and asked Mm who tore down Ms house; that Jones said he did not know, and that after some altercation Hanson, who had a revolver with him, ordered Jones to leave the premises; that Jones started to leave, and that Hanson then went over towards Jenkins’ place. After they had got some distance apart, Jones testified, he heard a shot fired. He also claimed that Hanson was quite drunk at the time, and that no one else was present or within seeing distance; that the revolver Hanson had belonged to Jenkins, and that he (Jones) had no revolver or gun of any kind. Hanson was shot through the calf of the leg. The inference drawn from this testimony was that Hanson had shot himself, accidentally or otherwise, and it was claimed that thereupon Hanson and Jenkins conspired to charge Jones with a felonious assault as aforesaid, thereby undertaking to get him imprisoned in tho penitentiary. There was testimony to show that upon several occasions prior to this shooting Jenkins had said that if Jones did not vacate the land in controversy he would have him sent to the penitentiary, or that he would try to get up a charge against him for that purpose. Hanson’s testimony in part was, that at the time the shooting occurred he had gone over to Jones’ cabin, where Jones was at work on the roof, to ask him who tore down his cabin; that Jones pulled a revolver, and as he (Hanson) turned to run, Jones shot him. Jenkins testified about the shooting, in substance, that he and Hanson had returned to his (Jenkins’) place from Seattle, just prior to its occurrence; that he went about preparing something to eat, while Hanson went to look at his torn-down cabin; that when he had gotten the meal ready he went and called to Hanson to come, but did not get any answer; that, hearing some talking, he went over towards Jones’ place; that he went up to within one hundred and fifty feet of them, and saw them both plainly, and that he there saw Jones shoot Hanson through the leg after having *29told him to go out of there, and after Hanson had turned to go. There was testimony that Hanson had said that Jenkins was not present, and did not see them. Hanson and Jenkins were the only witnesses who testified for the prosecution before the justice of the peace. It was not claimed by the prosecution that any other than the three— Jones, Jenkins and Hanson — was present or witnessed the shooting, or that any one else knew anything very material in relation thereto. It was shown that Jenkins and Hanson were witnesses before the grand jury, and that both of them testified to the charge against Jones at his trial in the superior court, and gave the only direct testimony against him at said trial.
The first point made by appellants goes to the sufficiency of the complaint, to which they had jointly interposed a demurrer upon the grounds that it charged more than one ground of action, not separately stated, and that it stated no facts sufficient to constitute a cause of action against the defendants or either of them. Appellants’ brief and argument thereon, however, were limited to the proposition that the complaint did not state a cause of action against Jenkins. It was contended that the complaint should allege malice upon the part of said defendant, that there was no probable cause for the prosecution, and furthermore that the charge was in fact falso. It was argued that it made no difference how maliciously said defendant acted in the premises if there was probable cause for the charge and prosecution, and that it did not matter whether they had, or whether there was probable cause within their knowledge or not, if the respondent had in fact committed the crime. It was urged that the complaint failed to show that Jenkins took any active part in the proceeding, or that he did anything beyond what he was required to do in obedience to process as a witness. But these points, if raised, under the circumstances, are not well taken. The first paragraph of the *30complaint alleges “ that on the 23d day of November, 1889, the defendants procured the arrest of the plaintiff on a false charge of assault with a deadly weapon upon the person of defendant Michael C. Hanson, on the 23d day of November. 1889, in the county of King and State of Washington ; ” and the eighth paragraph alleges “ that in procuring the arrest and prosecution of the plaintiff the defendants acted maliciously and without probable cause.” The responsibility for the prosecution is charged upon Jenkins equally with Hanson in these allegations, and this is not affected by the other allegations in the complaint, showing that only Hanson swore to the complaint to obtain the warrant; and it is alleged in the part of the complaint stated that the charge was false, and that the defendants acted maliciously and without probable cause.
It was further insisted that the action of the justice of the peace in binding the plaintiff over, and his indictment by the grand jury, of themselves showed probable cause for instituting the proceedings, and authorities are cited which appellants claim support this position; but whatever force there is in the proposition as a general one, there is none in a case like this, where the whole proceedings were founded upon the acts and testimony of the defendants, which were alleged to have been malicious and false; and this was the very issue tried. Certainly the defendants should not be allowed to avoid responsibility upon such grounds if the very proceedings set up in defense were based and founded upon their own perjured testimony, and it could have been nothing less under the circumstances of this case; if it was untrue, there was no possibility for any mistake therein.
Error is claimed upon the admission in evidence of the affidavit and warrant issued by the justice of the peace, and of the bond taken before him; also of the record of the proceedings had in the superior court in the prosecution of *31Jones, on the ground that they were not properly identified; but, owing to some inadvertence, none of these documents were sent up with the record, there being only the copy of the affidavit and warrant of arrest heretofore mentioned therein, and consequently no point over them is raised.
It is contended that the court erred in certain instructions given to the jury, and in refusing to give an instruction asked for by appellants. One of the instructions given which is complained of is as follows:
“ If you believe from the evidence that the defendant Hanson was shot by the plaintiff in the manner as claimed by him, and that Hanson and defendant Jenkins saw such shooting, were present and witnessed it; in other words, if you believe their testimony as given before you, you will find that they had probable cause for commencing such prosecution, and your verdict should be for the defendants. On the other hand, if you find that the defendant Hanson was not assaulted and shot by the plaintiff at all, and that the testimony of Jenkins and Hanson is false as to the fact of shooting — that they both came into court and willfully testified falsely to the shooting — you may find that such prosecution was commenced without probable cause, and may find that the same was malicious.”
This instruction is objected to on the ground that an action for malicious prosecution requires express proof of malice and absence of probable cause, and we are cited to the case of Maloney v. Doane, 15 La. 278; 35 Am. Dec. 204. That case was an action for damages for malicious prosecution in having charged the plaintiff with enticing away and harboring a slave belonging to the defendant. In the action for damages the defendant offered to prove by two witnesses that they had stated to him before he instituted the prosecution against the plaintiff that a certain anonymous letter was in their opinion in the handwriting of the plaintiff. It appears by the reporter’s statement that this letter charged the defendant with maltreating a certain female slave, and stated that the *32slave had friends who would protect her, and that she was at that time beyond the reach of the defendant, and the court very properly held that this testimony should have been admitted. It went directly to the question of probable cause and the motives of the prosecutor, but the facts there are not at all similar to the facts in this case. There was no offer here of any testimony to show probable cause outside of the testimony of the appellants, which was admitted; and the court very properly told the jury that, if they found this testimony was willfully false, they might from this find that there was no probable cause to warrant or excuse the prosecution, and that the same was malicious. In fact it would be hard to get stronger or more direct proof of these matters than evidence of this character.
Another instruction objected to is as follows:
“ If, from the evidence and the instructions I have given you, you find that the plaintiff is entitled to recover, in estimating the amount of his damage you have the right to take into consideration and allow to him such reasonable sum as the evidence may show he was compelled to pay in defending himself against said charge, and such reasonable sum as the evidence may show to be a just compensation for the time necessarily lost in attending upon said trial, and such further sum as will compensate him for injured credit, peace of mind and mental suffering.”
The controversy here arises over the meaning which should be given to the word “credit.” The appellants urge that the jury would naturally understand it as relating to tbe financial standing of the plaintiff, that being the sense in which the word ordinarily is used; and that it was error, as there was no proof that the plaintiff had any credit or that he had sustained any injury therein; and that the instruction was erroneous as not predicated on the .testimony in this particular. But the very fact that no issue had been made thereon and that it was not • claimed the financial standing of the plaintiff had been injured, or any testimony *33offered in regard to it, would of itself indicate that the word was used here as relating to the reputation of the plaintiff and the esteem in which he was held by the community; and the use of the word in this sense, while possibly not so common as in the other, is certainly not exceptional, and the connection in which it was used in this instance, with the surrounding circumstances, rendered its meaning obvious, and the jury could not have been misled thereby.
The request to charge which was refused is as follows:
“In order to find for the defendants, or either of them, it is not necessary that it be shown by the defendants to you that the plaintiff did assault Hanson to such an absolute certainty as would be required for you in order to convict the plaintiff of the charge; even though if upon the evidence you should not feel justified as jurors in finding a verdict of guilty against the plaintiff, still this of itself would not be sufficient to justify you in finding a verdict in favor of the plaintiff. Either defendant would bo entitled to a verdict in his favor, if the evidence taken altogether should show that he had probable cause for doing whatever he did in the premises.”
This request was fully covered in the instructions given to the jury. The jury were told that the plaintiff must make out his case by a preponderance of the evidence, and in order to find a verdict in his favor they must find that the appellants came into court and willfully testified falsely as to the shooting ; and that in no case could a verdict be found against Jenkins unless the jury were satisfied by a preponderance of the proof that he acted in conspiracy with Hanson, and so acted without probable cause.
The jury returned a verdict in favor of the plaintiff for $3,000, and the appellants moved to have the same set aside as excessive. The motion was denied, and error is claimed thereon. If the plaintiff was entitled to recover anything, the amount recovered is not excessive. Two *34juries found against the testimony of the appellants; and in this action, in order to find for the plaintiff under the evidence and instructions, they had to find that the appellants willfully testified falsely, in relation to the charge against the plaintiff, and for the purposes of this case that fact is settled, whatever the real truth of the matter may be. The charge brought against the plaintiff was a most grievous one, and the consequences, in case of conviction, were likely to be serious indeed. The very fact that Hanson had been wounded in some manner lent an air of plausibility to the charge. Such a prosecution would be a very great damage to an innocent man in more ways than one, outside of the actual expense put upon him in defending the same, and the loss of time involved.
Judgment affirmed.
Anders, O. J., and Dunbar and Stiles, JJ., concur.
Hoyt, J., dissents.