Before the case was submitted to the jury, appellant requested the trial court to instruct that respondent *167could not recover as to the third cause of action, based on his arrest for petit larceny. This request was refused.
There was evidence before the jury to the effect that one of the agents, acting in appellant’s behalf, had told an engineer of the railroad, in respondent’s presence, that, if he did not stop associating with respondent, he would have him discharged; that respondent was a man without reputation; and that he would either send respondent to the penitentiary, or “fix him” so that he could not work in the country. It was also in evidence that, while respondent was in jail upon the charge of petit larceny, another agent, acting in behalf of appellant, had threatened to “railroad” him over to the penitentiary, and had also told him that, unless he would plead guilty to petit larceny, he would have him arrested on a charge of burglary. Whether these agents acted maliciously in making these threats, in the sense which the law ascribes to the term ‘ ‘malice, ’ ’ is immaterial. Before recovery can be had for malicious prosecution, the instigator of the prosecution must be shown to have acted both maliciously and without probable cause. In this case respondent clearly failed to establish even a prima facie case of want of probable cause on the part of appellant in causing his arrest for petit larceny. The confession of Smith implicating respondent in crime, and the fact that respondent concealed the three suits of underwear in his possession, because he suspected they had been stolen, fully justified appellant in causing his arrest on a charge of petit larceny for goods taken in one county, and brought to another.
On the conceded facts before it, as a matter of law, the trial court should have told the jury that respondent could not recover in respect to said cause of action. What distinction of a substantial nature the lower court had in mind between respondent’s right to recover on the fourth cause of action and his third cause of action, we are at a loss to comprehend. On the very day respondent was discharged on the petit lar ceny charge, he was arrested on the burglary charge. Involved in both alleged crimes were articles of merchandise *168claimed to have been taken, or attémpted to have been taken, on or about the same date. That quilts were the subject of the one alleged larceny, and quilts and underwear the subject of the other alleged or accomplished or attempted larceny, made no difference, so far as probable cause for a belief that either crime had been committed by respondent was concerned. And yet, properly enough (although the ruling is not directly before us for consideration), the case as to the fourth cause of action was dismissed. The two alleged crimes are not distinguishable so far as appellant’s motive in the prosecution of them was concerned. The inconsistency of the trial court is manifest.
There are numerous other errors assigned in respect to the court’s instructions to the jury. These, however, it is unnecessary for us to consider. The case is reversed, with directions to the lower court to enter judgment in favor of appellant.
Reversed.
Pemberton, C. J., and Hunt, J., concur.