Opinion by
Mr. Justice Williams,This case grows out of the Commonwealth v. John Steimling, in which an opinion is filed herewith. That was a prosecution for the larceny of anthracite coal, in which the learned judge of the court below directed the jury to render a verdict of not guilty, for the reason that the facts relied on by the commonwealth as justifying a conviction were wholly insufficient for that purpose, and amounted to a simple trespass and no more. After the verdict was rendered, this action was brought to recover damages for an alleged malicious prosecution. Bowel *410defended on the ground that, even if mistaken as to the legal value of the facts, they afforded probable cause for instituting the prosecution.
. The learned trial judge overruled this defence and instructed the jury in effect that as the facts charged did not amount to larceny they afforded no probable cause for the prosecution; and that this fact was evidence upon the question of the existence of malice in the mind of the prosecutor against the defendant. Upon this view of the case the jury found for the plaintiff. We have decided that the learned judge was mistaken in his view of the case of Commonwealth v. Steimling, and that instead of directing a verdict in favor of the defendant he should have submitted the case to the jury. The same error that led to .a binding instruction in that case is the basis of the instruction complained of in this, and requires us to reverse the judgment. A conviction might have been had on the facts disclosed in the prosecution for larceny. This being so, it is clear that it was error to tell the jury that the defendant had failed to show probable cause, and that the facts showed on the other hand that no probable cause existed. What the result of the criminal case might have been if it had been submitted to the jury we cannot tell.
If the defendant in that case had been convicted no one would pretend that this action could be maintained. On a consideration of all the facts we are not disposed to direct a venire facias de novo, but the judgment of the court below is reversed.