dissenting. This is an appeal from a judgment in favor of appellee, Douglas P. Holmes, based upon a verdict of a jury, in an action brought by appellant, Inez Reynolds, for libel, slander, and malicious prosecution.
On the morning of Saturday, October 13,1956, appellant, Inez Reynolds, with her two daughters, Nadie, age 12, and Glenda, age 6, entered the Ben Franklin Store, a self-service store, at Newport, which was owned and operated by appellee, Douglas P. Holmes, to make some purchases. She and the children selected four purchases, including a green coat sweater for the older child, carried them in a basket to the cashier’s stand, paid for them, and were leaving the store when she was stopped by appellee, conducted to a room at the rear of the store, and accused by him of having stolen a red sweater then worn by her youngest daughter, Glenda. She protested that she had bought the red sweater in question at the store the preceding Monday, October 8. Appellee summoned three employees, Henry Burge, Mrs. Nettie Davidson, and Jerry Lynn Bradley, who told him in appellant’s presence that they had seen her put the red sweater on the smaller girl. She repeated that she had bought the sweater on the preceding Monday and requested that he summon the cashier as a witness. The cashier, Martha Spears, was summoned by the appellee, and questioned. Appellant was then dismissed. She left the store and returned with her husband, Lawrence Reynolds, in 15 or 20 minutes. Mr. Reynolds confronted appellee and demanded to know whether the red sweater worn by the little girl was the sweater his wife was accused of stealing. Appellee responded in the affirmative.
Appellant and her husband went immediately to the office of the sheriff for the purpose of attempting to prosecute appellee. The sheriff’s office was then occupied by the police department of the City of Newport. A radio operator and a deputy sheriff, John Mitchell, were present and appellant and her husband were directed to wait for the return of the Chief of Police. When Chief of Police, J. R. Taylor came in, he heard their story, took the paper bag containing their purchases, took them into the sheriff’s private office and placed a telephone call to Mr. Holmes who came to the office. After a discussion of the matter, Mr. Holmes and Chief Taylor went out into the main office, filled out a blank form affidavit for a warrant of arrest charging appellant with petit larceny. This charge was signed by appellee at the time and delivered to the Chief of Police. Chief Taylor kept the written charge until Monday or Tuesday following at which time he delivered it to Vaughan Jackson, the Clerk of the Municipal Court of the City of Newport. On Tuesday morning, October 16, 1956, the clerk presented the signed form to appellee at his office for verification.
After appellee signed the form in the sheriff’s office, Chief Taylor and John Mitchell, the deputy sheriff, drove appellant and her family home to Jacksonport. By invitation the two officers inspected the clothing of the children in their home.
After having inspected the clothing of appellant’s children on the Saturday afternoon in question, Chief Taylor instructed appellant to appear in the Municipal Court in the City of Newport at 1:30 p.m., on Tuesday, October 16, 1956. Appellant appeared as instructed with her witnesses and her attorney for trial. She was not tried until December 7, 1956, at which time she was acquitted of the charge against her.
On December 28, 1956, twenty-one days after her acquittal, appellant filed her complaint against appellee for slander, for libel, and for malicious prosecution. The case was tried December 4, 1957, and resulted in a hung jury. The case was retried on July 11, 1959, and the jury returned a verdict for the defendant. Judgment was rendered accordingly; notice of appeal was given in apt time; and the case is now before this Court.
For reversal, appellant relies upon a number of points. No useful purpose would be served by discussing any except the following on which my dissent is based.
Appellant contends that the court erred in refusing to permit appellant, Inez Reynolds, to testify that at her trial in Municipal Court, Judge Ridley, after hearing the evidence and the argument of counsel for the prosecution (her attorney made no argument), asked appellee Holmes a question, what the question was, and what his answer was.
The following appears in the record relative to appellant’s testimony in her case in chief:
“Douglas testified against me. He said he saw me when we first came in and we didn’t have no wraps on, and I had a shopping bag. I said none of us did. I had on a blue short coat. My youngest daughter had on the red sweater. Nady didn’t have on a sweater because she didn’t have no sweater.
“He testified that when he called Martha Spears back there, she admitted selling me a sweater, but said it was a blue one.
“Jerry Lynn Bradley testified that Martha said she sold me a sweater, but it was a blue one. She said she saw us when we came in and my girls didn’t have on anything; no wraps. Mrs. Davidson testified. She said she saw us come in and we didn’t have on any wraps. She also said that Martha said she sold me a sweater but she said it was a blue one. ’ ’
“Q. Did the court ask Douglas Holmes a question after the argument?
“A. Yes, sir.
“Q. What was the question?
“By Mr. Pickens: Object for the reason that whatever the Court might have said to Douglas Holmes at the time is not proper in this lawsuit. We are getting three different litigations mixed up as a result of Mr. Priest’s question and it is irrelevant.
“By the Court: What was the question?
“By Mr. Priest: I asked her what question Judge Ridley asked Douglas Holmes and what his answer was.
“By the Court: Objection sustained, go ahead.
“By Mr. Priest: Note our exceptions; and the witness, if permitted to answer would have stated that at the conclusion of the argument Judge Ridley hesitated, then said, ‘I know this is unusual but I want to ask Mr. Holmes a question and I am going to ask it; Mr. Holmes, did you see Mrs. Reynolds and the two little girls enter the store?” His answer was: ‘No, sir, I did not know about it until it was reported to me’.”
In the case at bar appellee testified concerning the subject matter contained in appellant’s testimony, as set out above, as follows:
“Q. Why did you send after Miss Jerry Bradley?
“A. I wanted to confirm what I had seen myself.
“Q. When you first saw them, did either of the children have any kind of wrap on?
“A. Neither one.
“Q. I believe you testified it was approximately 30 minutes you watched them?
“A. That’s right.
‘ ‘ Q. When Jerry Lynn came back, what took place ?
“A. I asked her if the little girl had a sweater on when they came in and she said, ‘No, neither one had anything on’.”
Appellant argues that the excluded testimony was offered for two purposes:
“A. To show that Douglas Holmes acted with express malice in instituting the criminal prosecution against appellant on a charge of petit larceny by showing that he tried to bring about her conviction by giving against her, and by causing his employees to give against her, testimony which he admitted to be false.
“B. To show that the testimony which she knew, from having heard it at a previous trial, would be given by appellee and his employees, Jerry Lynn Bradley and Mrs. Nettie Davidson, was fabricated and false, and was merely a substitute for tbeir original testimony in the Municipal Court, which Mr. Holmes had admitted to Judge Ridley was false.”
The question here presented is whether appellant should have been permitted to testify in her malicious prosecution action as to what was said by appellee in the criminal case before the Municipal Court. The issue involved in the exclusion of the testimony referred to is whether or not Mr. Holmes’ prosecution in the criminal case was in good or bad faith, i.e., whether or not he had probable cause to commence the action. In discussing this identical question, this Court in Kansas & Texas Coal Company v. Galloway, 71 Ark. 351, 74 S. W. 521, after discussing the general rule of admissibility, had this to say:
“. . . malicious prosecutions forms an exception to the rule. . . .
“. . . Probable cause is such a state of facts in the minds of the prosecutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person arrested is guilty. The facts testified to on the examination may have been very influential in raising such suspicion or belief, and are therefore competent evidence to show the ground he had of cause to believe, whether they were true or not. They are therefore facts material to the issue, to be proved by any witnesses who can testify to them, as well as by those who testified at the examination. These witnesses may be dead, absent or insane; they may have forgotten them, or refuse to testify to them, or even deny them; it is not the less true that they did so testify, and if the testimony was of a character to evidence a belief or strong suspicion, in the mind of a reasonable man, of the guilt of the accused of the crime charged, they had a direct bearing on the issue of probable cause or not, in the action for malicious prosecution. . . .” Prom what has been said above, I cannot escape the conclusion that the trial court erred in excluding the questioned testimony. See Hall v. Adams, 128 Ark. 116, 193 S. W. 520.
I now reach the question, was such error in this case reversible? Appellee argues that: “Appellant has no grounds for complaint. For in fact, the jury was permitted to hear this testimony in the testimony of Lawrence Reynolds. Reynolds testified in almost exactly the words of the offer of proof made at the time that the testimony was excluded when Inez Reynolds was on the stand. The appellee feels that it is at least highly questionable that the question of an examining magistrate was admissible the first time, but certainly by no stretch of the imagination can the appellant contend that she was prejudiced because she was not permitted to put the same testimony into the record twice. To have permitted both Inez Reynolds and Lawrence Reynolds to have testified to the same identical question and answer would simply be repetitive and cumulative and would serve no useful purpose. ’ ’
The general rule is that prejudice is presumed from the exclusion of competent and material evidence; 3 Am. Jur. § 940, p. 504. In the same volume on the same subject, at page 589, § 1032, we find:
“The general principle has been laid down that where the facts of the case are such that the appellate court cannot say that if the evidence erroneously excluded had been admitted, the jury would have returned the same verdict, the exclusion of such evidence will be held to be reversible error. If the erroneous exclusion injuriously affects a substantial right, then there is reversible error. It is generally held to affect a substantial right if it relates to a material point. ’ ’
To the contention of appellee that the error was cured by the testimony of Lawrence Reynolds, to the same effect we find in the case of McDonough v. Williams, 86 Ark. 600, 112 S. W. 164, the following:
“While there was evidence to the same effect admitted, the jury did not accept it. We cannot say that this evidence was cumulative. The witnesses were not sufficiently numerous for that, and, if the jury had been given the opportunity to consider the testimony of Spradlin, they might have given it more weight than the other testimony that was adduced to the same effect.”
The testimony which was excluded was an admission against interest because when Holmes admitted in Municipal Court that he didn’t see them enter the store, after having previously testified that he did see them enter the store, it was more than impeachment because in showing that he swore falsely in Municipal Court indicates that he maliciously instituted the prosecution in that court. Whether he saw them enter the store was material because that was one factor in determining his good faith in starting a prosecution on something someone else told him rather than on personal knowledge. See: Thiel v. Dove, 229 Ark. 601, 317 S. W. 2d 121; Hall v. Adams, supra; and Kansas, Texas Coal Co. v. Galloway, supra.
Following the rule set out above, it is my conclusion that the error as indicated is reversible and for this reason I respectfully dissent to the majority opinion.