Section 5 of the Constitution of 1901 provides that “the people shall be secure in their persons, houses, papers and possessions from unreasonable seizure or searches,” and that “no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or *128affirmation.” In a leading and well considered case in this country (Carey v. Sheets, 67 Ind. 375) it is said that the quoted declaration, in substance, is an affimation of the common-law right of the citizen not to be searched or seized without probable cause. Where a search warrant is regularly issued upon oath or affirmation, but such oath or affirmation is the product of malice, and is not supported by probable cause therefor, and search of the place is made by the officer in accordance with the mandate of the search warrant, the party injured thereby may maintain an action on the case to redress the wrongs so inflicted.—Carey v. Sheets, 67 Ind. 375; Elsee v. Smith, 16 Eng. Com. Law Rep. 19; Beaty v. Perkins, 6 Wend. (N. Y.) 382; Whitson v. May, 71 Ind. 269; Olson v. Tvete, 46 Minn. 225, 48 N. W. 914; Harlan, v. Jones, 16 Ind. App. 398, 45 N. E. 481; 25 Am. & Eng. Ency. Law, p. 151. As a matter of pleading, a count omitting the allegations of malice, though carrying the averment of want of probable cause, would be demurrable on account of the omission indicated, since the action on the case, for the violation of the right infracted is, in nature, a malicious prosecution. — Carey v. Sheets, supra. But proof of the averment of the malice infecting the oath or averment on which the search warrant issues may be inferred, by the jury, from want of probable cause, or from the facts and circumstances attending the procurement of the writ. — Lunsford v. Dietrich, 93 Ala. 565, 9 South. 308, 30 Am. St. Rep. 79.
Malice has been thus well defined by this court: “Whatever is done willfully and purposely, whether the motive be to injure the accused, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if at the same time wrong and unlawful within the knowledge of the actor, is in legal contempla*129tion maliciously done.” —Lunsford v. Dietrich, supra; Jordan v. A. G. S. R. Co., 81 Ala. 220, 8 South. 191. Personal ill will, or desire for revenge, is not essential to the existence of malice as the law views it. — Lundsford v. Ditreich, supra.
Probable cause was also defined in Lunsford v. Dietrich, supra, as follows: “A reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guity of the offense charged.” Mere suspicion and belief, even though honestly, bona fide entertained, of the guilt does not, as readily appears, alone, rise to the dignity of affording a basis for probable cause. It is essential that, at- the time the oath or affirmation is taken or made, the actor then knew of facts or circumstances such as would have justified a reasonable and cautious man in believing that the accused was guilty. — Lunsford v. Dietrich, supra. Less than that cannot be probable cause.
The- burden is of course on the plaintiff to show that the search warrant was maliciously and without probable cause therefor, secured. But if the search warrant was executed by diligent search within its mandate, and the officer’s return is “no property found,” this, if shown, establishes prima facie that the property was not in plaintiff’s possession, and that he did not steal or conceal it. — Olson v. Tvete, 46 Minn. 225, 48 N. W. 914. If the facts are undisputed, probable cause vel non is a question of law.—Ewing v. Sanford, 19 Ala. 605; McLeod v. McLeod, 75 Ala. 483. In this instance the search warrant appears to have been regularly issued ; and the official return was executed by search, but none of the property was found in the plaintiff’s possession or on his premises. There are no errors as*130signed upon rulings on the pleadings; so no consideration of their sufficiency is invited or undertáken.
Appellant insists that the evidence was not sufficient to authorize the submission of probable cause vel non to the jury. The court below took the opposite view and so submitted the issue. Whether the plaintiff was in fact guilty of the offense is not a controlling inquiry on this issue. — McLeod v. McLeod, supra. The question is, Were the known (to the prosecution) facts and circumstances sufficient, regardless of the unfavorable (to the state) event of the prosecution, to justify a reasonable and cautious man in believing the plaintiff guilty? The consequence necessarily is that a want of knowledge of .sufficient evidence to convict the accused of the offense charged is not the test of probable canse vel non. And it is necessarily a corollary that the facts and circumstances known to the prosecution, and on which, under the doctrine of probable cause, he was authorized to act, need not be legally admissible evidence on the trial of the accused.
Between the evident policy of the law to bring the guilty to justice, which ois usually begun by steps taken by the citizen, and, on the other hand, the right of the .other citizen to be free from the accusation of crime without probable cause therefor, the law must hold an even hand, never so exaggerating the latter protective right as to render the exercise of the means afforded for the detection and punishment of crime against the state an act of peril and penalty to the citizen who, in good faith and with probable cause therefor, starts the machinery of the penal law against the accused. Neither right nor policy, of the two mentioned, is superior in the eyes of the law. Ignoring one is as grave in consequence as ignoring the other. Both must be fairly considered, when occasion arises, to determine such issues as are here presented.
*131Our view concludes consistent with appellant’s insistence that the facts and circumstances, or either, known to the actor, must have relation, and refer to the accused as the guilty party. Such, we understand to be the doctrine of Lunsford v. Dietrich, where it said that the circumstances must be sufficiently strong in themselves to warrant a cautious man in the honest belief that the accused is the guilty party. But- that accord with appellant’s stated insistence does not solve the question to appellant’s advantage. The inquiry is: Did the facts and circumstances refer the felonious act, within the requirements of probable cause vel non, to the accused as the guilty agent? In this instance it was open to the jury to find that a robbery had been committed; that plaintiff lived in the community; that affiant had been informed of his commission of two other offenses of like character; that affiant knew of his bad repute in the community; and that he had been “loitering around Drewry, Alabama (the scene of the alleged offense), for several months prior to the robbery without any employment.” It does not appear in this record that the pflaintiff was a man of means. It does appear that he was a man of family, and that the property taken was flour and meat. The property taken from the affiant’s master was subsistence. Where such an act is committed, reason, at least, suggests that the culprit took it either for use or for sale. It is not irrational, in such cases, to attribute the motive for the act to those about the scene of the crime, who from the absence of industry were in need. Whether the fact was true or not, from the evidence here the jury would have been reasonably justified in finding that plaintiff was of that class and that affiant knew the fact. Besides this, the evidence warranted the further finding, whether in fact true or not, that plaintiff had a bad reputa*132lion in the community, and'that he had taken, on two occasions, the property of others, and that affiant had been so informed. Without further statement, we think, and so hold, the submission to the jury of the issue of probable cause vel non free from error.
There was evidence before the jury from which it was reasonably inferable that the affiant’s (Hudson’s) act in securing the search warrant was ratified by the defendant (appellee), viz., that it paid the costs of the prosecution, as also that the defendant directed the proceeding.
It follows that charge 2, given at the instance of defendant, was erroneously so treated, since it ignores the effect of the phase of the evidence tending to show ratification of Hudson’s action.
Charge 10 was faulty, in that it omitted consideration of the evidence tending to show that Hudson made the affidavit by direction of the defendant.
Charge 6 was free from vice, as applied to this case. 'The terms “wrongfully,” “vexatiously” and “purposely,” conjoined in the charge unquestionably describe such concurrence of act and accompanying motive as is the legal equivalent of malice in law, as defined above. See, also, Spivey v. McGehee, 21 Ala. 417, 422.
Charge 9 was also without fault, when referred to the evidence in the case. It squared to the definition ■of probable cause as often stated by this court. The refusal of charges 6 and 9 was error.
Charge 7 was not erroneously refused to plaintiff.— Coleman v. Pepper, 159 Ala. 310, 49 South. 310; Cox v. B. R. L. & P. Co., 163 Ala. 170, 50 South. 975.
Charge 26, given for defendant, might well have been refused, because argumentative. The giving of such charges does not constitute reversible error.
Charge 29, given for defendant, might have been properly refused. At most, the plaintiff’s bad repute in the *133community, aside from its legitimate bearing upon the issue of probable cause vel non, was considerable alone as bearing on the quantum of damages to be awarded plaintiff, if he was entitled to recover. This instruction was capable of the interpretation that plaintiff’s bad repute was a factor in determining his right to recover at all, even though the prosecution was, maliciously and without probable cause, instituted by direction of defendant to Hudson, or was ratified by defendant.
Charge 4, given for defendant, should have been refused. He might have acted in both capacities. There was evidence that Hudson was a deputy sheriff at the time the affidavit was made. In it he described himself as agent for the defendant. There was no evidence that in making the affidavit he was acting in his official capacity. Besides, the deduction the charge assumed to make from the finding that he acted as an official in the premises, rendered the instruction argumentative.
The rulings on the admission or exclusion of evidence wrought no prejudicial errors. On the trial to be had, if the plaintiff’s bad repute at McWilliams, Ala., is offered, it should be admitted, though if it is not followed up by testimony tending to show Hudson’s Knowledge thereof before, or at the time, he instituted the prosecution, it should be excluded on proper motion.
There are a number of questions discussed in brief for appellee; but the errors assigned, and with which alone we can now deal, forbid, the consideration of other matters.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and Remanded.
Dowdell, C. J., and Simpson and Mayeield, JJ., concur.