The recovery in tbis case is small. The grounds to justify the defendant’s testator in causing the arrest of the plaintiff were certainly very slight. There seems to have been very little indeed which warranted him, at the time when he procured the warrant, in suspecting that the plaintiff was guilty of the crime.
But there is one part of the charge of the court which seems to us erroneous. The court charged that the failure of the grand jury to indict was conclusive evidence of the plaintiff’s innocence. Such failure, or some other termination of the prosecution is, it is true, a pre-requisite to the action. And, as stated in Carl v. Ayers, (53 N. Y., 14), the question, in an action for malicious prosecution, does not depend altogether on the guilt or innocence of the accused. It does not follow when an innocent man is prosecuted for crime that his accuser is guilty of malicious prosecution. The accuser may have good and sufficient reason . to believe that the accused is~guilty, and if so, he is justified iri’,' his action. But, on the other hand, the guilty man can have no\ ground of complaint when'Tie) is 'prosecuted, however slight the" evidence against him.” And, therefore, a conviction'of the crime would"'prevent the convict from asserting that he had been maliciously prosecuted.
The converse, however, does not follow. The prosecutor is not concluded by the failure of the grand jury to indict. Such failure is not conclusive evidence of the innocence of the accused. He might be indicted at some future time. And as the actual guilt of the accused would be an important element in considering the charge of malicious prosecution, it must be open to the defendant in such an action to show such actual guilt.
The judgment must be reversed, and as it appears that Gould has died since the trial it is unnecessary to order a new trial.
Present — Learned, P. J., Bocees and Boardman, JJ.Judgment reversed.