The opinion of the court was delivered by
Armstrong, J.This was an action on the case brought by Fanny Barrett against Philip Graff for malicious prosecution, and we dre asked by the plaintiff in error to reverse the judgment for the single reason, as alleged, that the court below erred in refusing to charge that, “ If the jury believe the evidence in the cause on the part of the defendant, there is such reasonable ground of suspicion proved as would constitute probable cause.” And this is attempted to be sustained on the authority of Laughlin v. Clawson, 3 Casey 328. It receives, however, no support from that case. There the Court of Common Pleas regarded the testimony of the prosecutor as furnishing sufficient evidence of probable cause if believed, and yet refused to give a binding instruction. Here, if we are to judge from the facts so far as stated in the charge, the court could not have believed, much less have been justified in giving the instruction demanded in Laughlin v. Clawson. There, legal advice had been sought by the prosecutor, Here, he clothed himself with no such precaution.
But a more grave objection lies to the reversal of this judgment. Not a particle of the evidence 'on the part of the defendant, and on which the point rests, has been returned. And in its absence no amount of' discernment could enable us to say the answer of the court was erroneous. And the only advantage a report of this case can have, is to repeat, if that can be necessary, that where the error depends upon a consideration of the evidence, such evidence should be made a part of, and returned with the record.
Judgment affirmed.