— I. The defendant Brown in his answer admitted the receipt by him of the identical sums of money which he is charged with appropriating to his own use in the petition, but he alleged that he accounted therefor and paid the same as required in the discharge of his duty. There was evidence introduced by him tending to support the allegations of his answer. Plaintiff introduced evidence, consisting of hi's books of account and other testimony, tending to show that defendant had failed to' account for certain moneys received by him in the course of his employment. Upon the issues arising on the counter-claim the)'© was evidence introduced tending to prove that plaintiff had testified before the grand jury finding the indictment and upon the trial, and that he had instigated the prosecution.
II. The court gave the following instructions to the jury:
i. mamciotxs pi-oSie011' vicüoii. “ VII. In this cause it is admitted by the pleadings that the defendant was convicted of the offense charged, and if there has been no proof offered showing apon what evidence such conviction was liad then the conviction of the defendant in said cause is- conclusive evidence of the existence of" probable cause, and you will find for plaintiff on defendant’s counter-claim. But if the evidence by plaintiff upon which said conviction was had has been proved before- you, and you find- that the same was false, *439and tliat said conviction was without foundation in law, then you will find for defendant upon his counter-claim, if you find such prosecution was malicious and without probable cause.
* -X- X- -X- x x- x- -x _ ”
’ ._. -• This instruction, in holding that conviction of the defendant*''was not conclusive upon the question whether plaintiff had probable cause to prosecute defendant, is probably correct. Moffatt et al v. Fisher, 47 Iowa, 473. The second sentence of the instruction seems to hold that, to render plaintiff liable, the jury should find that he testified falsely and that defendant was convicted illegally, “ without foundation of law,” and the prosecution was malicious and without probable cause. We cannot approve this instruction. We think that if plaintiff instituted the prosecution maliciously and without probable cause he would be liable, even thought he did not testify falsely in the case. The instruction, however, should have been regarded and followed by the jury as the law of the case, and under it we think there is an utter failure of testimony to support the verdict. The evidence utterly fails to show what testimony was given by plaintiff on the trial of the indictment. It was, therefore, impossible for the jury to find that plaintiff did testify falsely.
3. —:-: sulered.6 0011 III. We think, too, that there is an utter absence of testimony tending to show want of probable cause for the proseeution, and that on the contrary it clearly appears that plaintiff had probable cause to believe that defendant was guilty of embezzling funds entrusted to his care. It is shown that defendant confessed to plaintiff and others that he had misappropriated money coming into his hands which belonged to plaintiff. He produced a private book kept by himself, showing the sums he had appropriated and the sources from whence he had received them, and explained the manner of concealing his appropriation of the money. The books of account kept by defendant, and other testimony in the case, if they do not fully establish the truth of his confession, surely tend strongly to support it.
The defendant in this case introduced testimony tending to *440show that plaintiff’s books kept by him do not show the embezzlement, and that when defendant made tho confession he was sick of typhoid fever and was not in fall possession of his mental faculties. But there is nothing to authorize the cou- . elusion that the plaintiff knew, or had cause to believe, that defendant’s mind was in any degree affected. When he made his confession to plaintiff, which was repeated to others, defendant had been sick and absent from business not to exceed three days. TIis conversation and manner were not such a.s to lead plaintiff to suspect that his confession was the expression of an unsound mind. Defendant testified in this case that he had no recollection of his confession; that lie' was sick at the time it is'alleged to have been made and did not recover until after he was convicted and sent to the penitentiary. lie stated that he thought the books of plaintiff' as kept by him would not show him to he in arrears. But he fails to state positively or inferentially that he did not misappropriate the funds committed to his care, and does not deny the charge of embezzlement. He was twice upon the stand as a witness in his own belialf, yet lie fails to deny bis guilt, or to show that his transactions were correct and honest. His silence certainly raises a presumption against him. We conclude that, under the instructions, the verdict is so against the testimony as to lead to the conclusion that.it was the result of passion and prejudice, and not of a fair and intelligent exercise of the discretion of the jury.
4. bmbbzzlf,mbkt: uliat constitutes, TV.' The evidence tended to show that the different sums of money, the embezzlement whereof was the foundation of the criminal proceedings and to recover which ,, . . , , ° , , . „ this suit was brought, were received at the office of plaintiff", who was an insurance agent, from policy holders, either by plaintiff'or defendant, and when received by plaintiff were delivered to defendant, who deposited the money in a bank, and. that defendant, in making out the monthly reports sent to the insurance company, marked and reported such sums as unpaid in order to make his accounts balance and to cover deficiencies on account of sums be bad before appropriated to his own use. The plaintiff asked the court to instruct the *441jury that defendant would, in law, he guilty of embezzling and liable in this action for the specific sums lie had reported as unpaid. The instructions numbered 4, 5 and 6, presenting this view of the law, were refused. They should have been given. If defendant had appropriated and embezzled certain sums for which he accounted by appropriating other specific sums received by him, which were made to take the place of the money he had before used, it is very plain tbat he is guilty of embezzling the last sums, for he appropriated them to his own use by applying the money to make up old deficiencies for which fie was liable.
Y. The sixth instruction asked by plaintiff, and refused, is to tlie effect that as the pleadings admit defendant was convicted upon the indictment, and there is no proof showing what testimony was given upon the trial, the conviction must he regarded as conclusive evidence of the existence of probable cause for the prosecution. The instruction is correct and should have been given. The conviction of the defendant upon the indictment, in the absence of other evidence, would require the j ury to find that the prosecution was instituted upon probable cause; in the condition of the proof, it was, therefore, conclusive evidence.
Other instructions asked by the plaintiff are in harmony with the views we have expressed. They ought to have been given.
For the errors pointed out, the judgment of the Circuit Court is
Reversed.