To sustain an action to recover damages for a malicious prosecution, the burden is upon the plaintiff to establish the existence of malice in putting the prosecution upon foot, and the want of probable cause for so doing.
The best approved definition of malice, as used in its legal sense, *323is that given in 2 Greenleaf’s Evidence, sec. 453, as follows: “ Any unlawful act, done wilfully and purposely, to the injury of another, is, as against that person, malicious.”
It is often said that malice may be inferred from circumstances; this means that the circumstances attending the prosecution may be such as to satisfy the mind that the party was actuated by wrongful motives in the institution and continuance of the prosecution. This wrong motive, coupled with a wrongful act wilfully done to the injury of another, constitutes legal malice; and may be established as well by circumstantial as direct evidence. The existence or non-existence of malice is a question of fact to be determined from a consideration of the evidence.
Even though malice may be established, yet it will not, unaided, support the action. There must be a want of probable cause concurring with the malice, before a recovery can be had.
Among the very best definitions given of probable cause, the absence or want of which is essential in actions for malicious prosecution, is that by the supreme court of the United States in Wheeler v. Nesbitt, 24 How., 545, and which is, “ the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.”
From this definition it is apparent that the existence or non-existence of probable cause does not depend upon the prosecutor’s belief of the party’s guilt or innocence, or the existence of such facts and circumstances as might influence his judgment, without regard to the effect it might have upon the judgment of others.
Ordinarily probable cause is a question of law. Greenwade v. Hills, 31 Miss., 464; Cloon v. Gerry, 13 Gray, 201; Chapman v. Cowrey, 50 Ill., 512; McWilliams v. Hoban, 42 Md., 56; Masten v. Deyo, 2 Wend., 424; Sweet v. Negus, 30 Mich., 406.
When the facts are not contested, and there is no conflict in the evidence directed to that issue, the question of probable cause is a matter of law which is to be decided by the court.
But when the facts are contested, or there is a conflict of evidence, then it becomes a mixed question of law and fact, and must be submitted to the jury for determination upon appropriate instructions as to the principles of law, by which the jury is to be governed in the investigation. Driggs v. Burton, 44 Vt., 124; Heyne v. Blair, 62 N. Y., 19; Humphries v. Parker, 52 Me., 502; Cole v. Curtis, 16 Minn.. 182.
*324In respect to the advice of counsel as a matter of defense in this character of cases, some confusion is found in the books. Evidence that the facts upon which the party proceeded in instituting and continuing the prosecution were submitted to an attorney, who, upon a consideration of all the facts, fully and fairly presented, without any reservation whatever, advised that they were sufficient to authorize the prosecution, is entitled to consideration in the determination of the issue of malice. But such evidence does not establish the existence of probable cause. Where good faith upon the part of the prosecutor is shown, malice cannot be inferred. Hence such evidence is admissible as tending to establish good faith upon the part of the prosecutor, and to repel any inference of malice that might be deduced from circumstances showing a want of probable cause.
In Stanton v. Hart, 27 Mich., 539, in reference to this character of evidence it was remarked,When a person resorts to the best means in his power for information, it will be such a proof of honesty as will disprove malice and operate as a defense proportionate to his diligence.”
It is not true, however, that a resort to professional advice constitutes an independent and substantive defense to the action for malicious prosecution. The defense is that the prosecution was instituted and continued in good faith by the prosecutor, and such evidence is admissible as tending to establish that defense. A resort to professional advice, under certain circumstances, might be sufficient to establish good faith, and repel any inference of malice, but it does not necessarily constitute a conclusive presumption against the existence of malice. Kimball v. Bates, 50 Me., 308; Brown v. Randall, 36 Conn., 56; Ames v. Rathbun, 55 Barb., 194; Glascock v. Bridges, 15 La. An., 672; Prough v. Entriken, 11 Pa. St., 81; Krug v. Ward, 77 Ill., 603.
It is asserted that the evidence disclosed by the record established probable cause for the prosecution of Arrott, and also disproved malice upon the part of appellants.
This evidence confessedly shows that a most flagrant violation of the penal laws of the state had been committed under the cover of night, which resulted in a most wanton and malicious destruction of the property of appellants.
There was evidence in which there was no conflict, that appellants had been informed by different persons who assumed to know, that appellee was one of the parties who committed the atrocious and inexcusable offense. Some of the persons from whom they derived *325this information claimed to have participated in killing the sheep. They were also informed by the sheriff of the county that he had talked with appellee and Lankford, and that he was satisfied they were with the party and participated in killing the sheep. It was upon this information that they acted in setting on foot the prosecution against appellee.
Evidently the facts and circumstances shown by the evidence are quite sufficient to induce a man of ordinary caution and prudence to honestly believe appellee guilty of the offense.
Besides it appears that, when arraigned under the complaint before the examining court, appellee waived an examination. This he attempts to explain by showing that his attorney advised him to do so, as the district court would soon convene. But that both attorney and client may have been induced to adopt this course by other considerations than the early convening of the district court is altogether consistent with the evidence. Witnesses that may have been present at that time had abandoned the country when the district court convened. It is hardly reasonable to assume that conscious innocence-would ordinarily, for so slight reason, for the time, accept the suspicious of guilt which might be supposed to arise from the course adopted.
This conclusion renders it Unnecessary to consider the other questions presented by the assignment of errors.
Our conclusion is that the judgment ought to be reversed and the cause remanded.
¡Reversed and remanded.
[Opinion adopted June 5,1885.]