I cannot concur in the opinion of the Chief Justice that the court went too far when he charged the jury upon the subject of malice that they might consider—
“Any statements you may find which he has made in which he has expressed ill feeling against the plaintiff, if you find he has made such statements.”
*103While it is true that every kind of ill feeling is not necessarily indicative of malice, yet malice may be proved by evidence of the defendant’s conduct and declarations; and if such conduct resulted in a wrong done to plaintiff, statements indicating ill feeling towards the plaintiff may be introduced in evidence, as bearing upon the intent with which the wrongful act was committed. Malice may be inferred by the jury from all the facts and circumstances given in evidence, and expressions of ill feeling are circumstances which are proper to be submitted to the jury. Mere expressions of dislike or ill will by one towards another, unaccompanied by acts, do not constitute malice in the legal sense. But where an act has been done, — such as instituting a prosecution, — then such expressions become relevant upon the question of malice.
Neither can I agree in the opinion that the requests to charge the jury, made by the defendant, and embodied in the opinion of the Chief Justice, should have been given. They omit two important elements:
1. That defendant made a full and fair statement of all the facts known to him to the prosecuting attorney, and to Frank B. Case, his attorney.
2. That he acted upon such advice in good faith. Mesher v. Iddings, 72 Iowa, 553 (34 N. W. Rep. 328); Donnelly v. Daggett, 145 Mass. 314 (14 N. E. Rep. 161); Jones v. Jones, 71 Cal. 89 (11 Pac. Rep. 817); Schippel v. Norton, 38 Kan. 567 (16 Pac. Rep. 804); Chambers v. Upton, 34 Fed. Rep. 473; Johnson v. Miller, 69 Iowa, 562 (29 N. W. Rep. 743); Josselyn v. McAllister, 22 Mich. 309; Stanton v. Hart, 27 Id. 541.
The case of Murphy v. Walters, 34 Mich. 180, is cited as sustaining the requests to charge. Had this case been an action for false imprisonment merely, and not for malicious prosecution, the case would have been in point. But this case proceeded upon the theory that the prosecution was malicious. There was a count in the *104declaration for that cause of action, and under this count the authority cited is not in point, and to have given the charge as requested would have been erroneous.
I concur in reversing the judgment upon the other points stated in the opinion of the Chief Justice.
Morse and Long JJ., concurred with Champlin, J.