(dissenting). — I. I herewith file, with some additions following the same, my opinion in Division as the ground of my dissent from the learned majority opinion of the Court in Banc in this case.
Statement.
Action in two counts, the first alleging false imprisonment and the second malicious prosecution, ^ .¿he close of plaintiff’s case the court sustained demurrers to the evidence on both counts and plaintiff took an involuntary nonsuit, which the court refused to set aside, whereupon he appealed to this court.
The suit grew out of the following facts:
On June 20, 1913, plaintiff, an employee of the Con-die-Neale Class Company, was instructed to go to the Century Building in St. Louis, to make certain measurements and calculations in order that said company could bid upon new plate glass which was to be used in the reconstruction of said building.
On the day in question plaintiff took measurements of the windows in various rooms in the building and *346finally reached defendant Bieber’s store on tbe second floor. As be entered be explained bis errand to one Armstrong, wbo made no reply, and plaintiff then proceeded to measure tbe windows. As be was calling out tbe sizes to bis companion, Frampton, wbo was entering them in a note book, Philip Bieber came in and ordered him to “get out.” An altercation ensued during which Sophie Bieber, cashier for tbe Bieber Shoe Company, sent for a police officer, wbo arrested plaintiff and bis companion. They were taken to tbe police station where charges were filed against plaintiff under tbe ordinance for disturbing tbe peace, and upon tbe trial of that case in tbe police court plaintiff and his companion were found guilty and fined, but upon appeal to tbe court of criminal correction they were acquitted.
Malicious Prosecution.
II. Tbe trial court did err in sustaining tbe demurrer to tbe count for malicious prosecution. That action is only maintainable upon evidence tending to show that the plaintiff has been subjected to a prosecution, malicious and without probable cause, and which has ended. [Sharpe v. Johnston, 76 Mo. 660; Firer v. Lowery, 59 Mo. App. l. c. 96.] Probable cause is a belief in tbe truth of tbe accusation prosecuted, based upon facts or circumstances brought to tbe knowledge of tbe prosecutor, which would reasonably induce such belief in tbe minds of men of ordinary prudence similarly situated. Tbe finding of an indictment or a commitment by an examining magistrate, is primafacie evidence of probable cause. . A conviction of tbe accused by a judicial tribunal, not procured by fraud or unfair means, is conclusive evidence of tbe existence of probable cause for bis prosecution and defeats any action therefor, notwithstanding such conviction may be reversed in a court of last resort. Tbe reason of this rule is tbe just and proper inference that tbe conviction rests on reasonable grounds and hence is within tbe rule defining tbe elements of probable cause. For a similar reason tbe advice of a capable or reputable attorney given and received in good faith, constitutes probable cause and is *347equally a defense to a suit based on a prosecution conducted by the defendant in conformity with tbe advice of such counsel. [Boogher v. Hough, 99 Mo. l. c. 185; Sidelinger v. Trowbridge, 113 Me. 537; Crescent Live Stock Co. v. Butchers’ Union Slaughter House Co., 120 U. S. 141; Saunders v. Baldwin, 112 Va. 431; Smith v. Thomas, 149 N. C. 100.] The result of reason and the great weight of authority in other states sustains the conclusion that the conviction of the plaintiff in the police court, although subsequently set aside on appeal, is a complete bar to the count for malicious prosecution, since it demonstrates the existence of probable cause, the absence of which is one of the indispensable elements to the maintenance of such an action.
False Imprisonment.
III. False imprisonment is essentially distinguishable from its kindred action of malicious prosecution, although both may be joined in the same suit by different counts setting forth each. But when the two causes of action originate in the same facts there can be orL|y one recovery. [Pandjiris v. Hartman, 196 Mo. 539; Boeger v. Langenberg, 97 Mo. l. c. 397; 19 Cyc. 358.] Where a citizen, directly or by procurement through an officer causes the arrest of another, the essential question to be decided is whether or not such arrest was lawful. If made under a warrant the inquiry need not go further than to ascertain the lawfulness and regularity of its issuance and contents. If made without a warrant, the question to be determined is the rightfulness of the caption under the applicatory law. If the end of both inquiries reveals the lawfulness of the arrest, then it is wholly immaterial whether the motives of the captors were malicious, and in case the arrest is made in pursuance of a warrant, regular in all respects and properly issued, it is wholly immaterial whether any probable cause existed for making it. But even an unlawful arrest may be justified by the ultimate conviction of the party apprehended of the crime for which he was taken into custody. With one exception (McCullough v. Greenfield, 133 Mich. 463, 1 Am. & Eng. Ann. Cas. 924, and notes) this rule *348seems to be the universal doctrine. [Cuniff v. Beecher, 84 Hun (N. Y.), 137; Pandjiris v. Hartman, 196 Mo. l. c. 546.] In the case at bar the arrest of the plaintiff did not result in his final conviction, for although fined in the police court, he was acquitted upon an appeal to the Court of Criminal Correction. Neither in the case at bar was the officer who arrested the plaintiff armed with a warrant or other legal process. The only question for decision, therefore, is the lawfulness of the arrest under the facts and circumstances disclosed on the trial.
The grounds authorizing an officer or a private citizen to make an arrest for a felony need not be considered, since the charge in this case was only a misdemeanor. [19 Cyc. 348, par. 2.]
Under the statute applicable to arrest by police officers in the city of St. Louis, it has been held that arrests may be made by such officers without a warrant, provided the officer making the arrest has reasonable grounds to suspect that a misdemeanor has been committed. [State v. Boyd, 108 Mo. App. l. c. 522, and cases cited; Wehmeyer v. Mulvihill, 150 Mo. App. l. c. 206; State v. Hancock, 73 Mo. App. 19; State v. Grant, 76 Mo. 236.] It has also been soundly ruled by the St. Louis Court of Appeals that if the actual arrest was lawful, an action for false imprisonment will not lie, regardless of the fact that the officer was instigated in making the arrest by a third person, or what may have been the motive of either. [Bierwith v. Pieronnet, 65 Mo. App. l. c. 433, and cases cited.] And this must be true for the plain reason that the lawfulness of the arrest being of the essence of a right to sue for false imprisonment, no action can arise as against any one, where the facts and circumstances in the record disclose that the arrest was not unlawful when made. The evidence adduced by plaintiff tended to prove that an altercation between himself and a'companion on the one side, and some of the employees of the defendant on the other side, took place; that a police officer was called in and a complaint made to him of a breach of the peace, and that upon the assurance of the employees of the defendant that they would prosecute the charge, the plaintiff was taken to *349the police station where a formal charge was made and a trial had in which the following judgment was rendered:
“On the 27th day of June, 1913, comes the city attorney, for the city of St. Louis, and the defendant in his own proper person also comes, and having seen and heard read the information herein, says he is not guilty in manner and form as therein charged. And the court having heard the evidence and being fully advised of and concerning the premises, doth find the defendant guilty as charged, and assesses his punishment at a fine of $10. It is therefore considered and adjudged by the court,” etc.
Upon an appeal from that judgment the plaintiff was acquitted.
Under these circumstances it cannot be said that the officer made the arrest without reasonable cause to believe the plaintiff to be guilty of a breach of the peace. [Hicks v. Faulkner, 46 L. T. Rep. (N. S.) l. c. 128.] He was, therefore, performing his duty and it was immaterial as to any liability on his part, that the party arrested was subsequently acquitted. The same rule must apply when the action, as in the present case, is brought against the private citizen who instigated an arrest made in the circumstances which protected the officer. He had the same right as the officer to make the arrest, and is no more responsible for having procured it than was the officer who apprehended the plaintiff in conformity to the rule of law governing the action of the police force in the city of St. Louis.
IY. I desire to add to my Divisional opinion supra, a fuller explication of the legal principles therein stated, and a discussion of the divergent doctrines expressed in the learned majority opinion, so that it may fully appear why I dissent "from the rulings in Banc.
*350 False Imprisonment and Malicious Prosecution: When an Action is Not Maintainable.
*349Attending first to the unfolding of the reason for the legal principles which, on account of the conciseness of statement, may not have been sufficiently demonstrated in *350my foregoing opinion. There is nothing clearer or better settled in this State or elsewhere, than the rules governing the maintenance of ao^ong for false imprisonment and for malicious prosecution. The first lies simply for an illegal arrest or detention. Where a person is arrested or imprisoned by another, the latter must show that the taking was nnder a lawful warrant, or under circumstances justifiable in law without the issuance of a warrant. In misdemeanor cases, in St. Louis, either of these predicates will justify the arrest of a person by an officer of his own motion, or upon the request of a private citizen. [Wehmeyer v. Mulvihill, 150 Mo. App. l. c. 205, 206, and cases cited.]
If either of these grounds exist no action for imprisonment can be maintained, however malicious may be the motives of the captor or instigator; for the arrest being a lawful one in itself, the groundwork of the right of action therefore fails. That an officer in St. Louis is authorized to arrest for a misdemeanor committed, not in his presence, if he has reasonable grounds to suspect the commission of that offense, is supported by the eases cited in my opinion, supra, and is admitted in the majority opinion.
This brings the matter of the ruling of the trial court sustaining the demurrer to the count for false imprison^ ment to one point: did the officer have reasonable grounds to suspect plaintiff to have been guilty of a misdemeanor when he made the arrest? If reasonable grounds existed for such suspicion at the time of his arrest, it is wholly immaterial whether plaintiff was guilty or innocent or with what motive the arrest was made; for the arrest being lawful, no cause of action could arise and hence no liability on the part of any one could flow from having made or caused it, or as said by the Court of Appeals, 150 Mo. App. l. c. 205, speaking through Nortoni, J.:
“As a proposition, it is true that no action for false imprisonment may be maintained for an arrest, which is lawful, no matter at whose instigation nor for what motive the arrest was made. [Bierwith v. Pieronnet, 65 Mo. App. 431; 12 Am. & Eng. Ency. Law [2 Ed.] 726, 739; *351Merchant v. Bothwell, 60 Mo. App. 341; Finley v. St. Louis Refrigerator etc. Co., 99 Mo. 559. See also, Taaffe v. Slevin, 11 Mo. App. 507; Taaffe v. Kyne, 9 Mo. App. 15.]”
The undisputed evidence is that after a quarrel, growing out of plaintiff’s attempt to do certain work on the premises of defendant, he was ordered or pushed out of the store and pending the ensuing altercation and quarrel with defendants, .he was arrested by a policeman at the request of defendants upon a charge of a breach of the peace, they informing the policeman of the facts charged, and stating they would prosecute the plaintiff. Upon the charge thus made, defendants did prosecute in the police court, where a judgment of “guilty” was rendered against plaintiff (set out in my foregoing opinion) which was reversed on an appeal. Whether these facts constituted a sufficient basis for a reasonable suspicion by the officer that plaintiff had disturbed the peace of defendants was necessarily a question of law, as is always the determination of the legal effect of conceded facts. Confronted with the duty thus imposed on it, the trial court could not shut its eyes to the probative force of these facts — without doubt a reasonable basis for a suspicion that plaintiff was a party to a breach of the peace —and being further cognizant of the law, that if the officer was not liable then there was no false arrest, the trial court, in the proper administration of justice, sustained a demurrer to the evidence adduced by plaintiff in support of the count for false imprisonment.
Majority Opinion Discussed.
Y. The third paragraph of the majority'opinion discusses the question of the effect of the judgment of conviction of plaintiff in the police court (copied in my opinion supra) as negativing the “want of probable cause,” which it was essential for plaintiff to show in or(2er to recover on the count for malicious prosecution. That such was the legal effect of that judgment irrespective of its subsequent reversal, I do not think was ever questioned in this State prior to the learned majority opinion. The announcement of that general rule-was made by this court at an early *352date, when, in speaking of a conviction had in the Court of Criminal Correction (a court having the ordinary jurisdiction of a justice of the peace) which had been set aside, it said:
“Ordinarily, at least, this would be conclusive evidence of the existence of probable cause, although the same may have been afterwards reversed on appeal, and the party discharged. See cases cited in briefs of counsel.” [Boogher v. Hough, 99 Mo. l. c. 185.]
To the same effect are: Crescent City L. S. Co. v. Butchers’ Union Co., 120 U. S. l. c. 151; 26 Cyc. 42, par. b, notes 10, 11 and 12 and citations thereunder; McElroy v. C. P. Co., 254 Ill. 297; Topolewski v. Plankinton Pack. Co., 143 Wis. l. c. 64; Schnider v. Montross, 158 Mich. 263; Casey v. Dorr, 94 Ark. 433; Duerr v. Bridge & R. R. Co., 132 Ky. 228, L. R. A. (N. S.) 1916F, p. 196, and notes; Sidelinger v. Trowbridge, 113 Me. 537.
In considering the defenses to an action for malicious prosecution, its essential elements must be clearly comprehended ; referring to which a capable text-writer says:
“There are two things which are not only indispensable to the support of this action, but lie at the foundation of it. The plaintiff must show that the defendant acted from malicious motives in prosecuting it, and that he had no sufficient reason to believe him to be guilty. If either of these be wanting the action must fail. A man from pure malice may prosecute another who is really guilty or whom, from sufficient grounds, he believes to be guilty, although in fact innocent, and no action will lie against him.” [Newell, Malicious Prosecution, sec. 6, P. 7.]
See also, Wills v. Noyes, 29 Mass. 324; Adams v. Bicknell, 126 Ind. 210 et seq.
The ground upon which the trial court directed a finding for the defendant on the second count, was the legal effect of the judgment of conviction as a showing of probable cause for the prosecution of plaintiff. That ruling was correct under the conceded facts in this record.
An unimpeachable judgment of conviction by any court of any dignity, is necessarily based on a finding of *353guilt, and, therefore, a finding of just grounds to prosecute the accused. It is therefore an antithetical example of the contrary of “without probable cause,” or in other words it shows the existence of probable cause in the mind of the judge, and hence disproves, by such showing of the status in the mind of the court, the alleged non-existence of probable cause, which allegation plaintiff must establish or fail in his suit. It obviously follows that such conviction involving such belief in the mind of the judge (a reasonable man) responds fully to the definition of probable cause, which is, only the reasonable belief of a reasonable man in the existence of probable cause to prosecute, not the fact of the actual existence of probable cause, nor the innocence or guilt of the accused, these being of no “legal moment.” [Wilkinson v. McGee, 265 Mo. l. c. 582, et seq.; Sharpe v. Johnston, 76 Mo. 660; Vansickle v. Brown, 68 Mo. l. c. 635; Callahan v. Kelso, 170 Mo. App. l. c. 341.] The basis of the suit being thus taken away, the trial court would have been derelict in duty if it had allowed the case to go to the jury after the appearance in evidence of the record of the conviction of plaintiff in the police court, regardless of the reversal of such judgment in a higher court. On this point says Judge Cooley :
“A conviction of the accused is conclusive evidence of probable cause unless it was obtained by fraud or unfair means which may he shown in rebuttal, and this is true though afterwards on appeal the conviction is set aside or the accused acquitted.” [1 Cooley, Torts (3 Ed.), 333, 334, note 73 and cases cited.]
On the same point says Mr. Joyce :
“While an acquittal is prima-facie evidence of want of probable cause, a conviction on the other hand is conclusive evidence that there was probable cause for commencing and continuing the prosecution and will relieve the defendant in an action for malicious prosecution from liability therefor. And this is declared to be the effect of evidence showing a conviction in a criminal action even though such conviction may he reversed on writ of error. ’ ’ [1 Joyce, Damages, sec. 433.]
*354See also Morrow v. Wheeler & Wilson Mfg. Co., 165 Mass. 349; Hartshorn v. Smith, 104 Ga. 235; Root v. Rose, 6 N. D. 575; Holliday v. Holliday, 123 Cal. 26; Price v. Stanley, 128 N. C. 38; 19 Am. & Eng. Ency. Law (2 Ed.), 666.
In a very recent case (Saunders v. Baldwin, 112 Va. l. c. 433, 434) where a conviction before a justice of the peaoe, reversed on appeal, was interposed as a defense to an action for malicious prosecution, in sustaining that defense the court said:
“In the great majority of the jurisdictions which have passed upon'the question, such a judgment is held to be conclusive evidence of probable cause, unless (as is the rule in most of the cases) such judgment was procured by fraud or undue means on the part of the defendant. [See Crescent City Co. v. Butchers’ Union Co., 120 U. S. 141; Bacon v. Towne, 4 Cush. 217; Morrow v. Wheeler & Wilson Mfg. Co., 165 Mass. 349; Herman v. Brookerhoff, 8 Watts (Pa.), 240; Cooper v. Hart, 147 Pa. St. 594; Burt v. Place, 4 Wend. (N. Y.) 591; Palmer v. Avery, 41 Barb. 290; Spring & Stepp v. Besore, 12 B. Mon. (Ky.) 551; Kaye v. Kean, 18 B. Mon. (Ky.) 839; Payson v. Caswell, 22 Maine, 212, 226; Thomas v. Muehlmann, 92 Ill. App. 571; Adams v. Bicknell, 126 Ind. 210; Holliday v. Holliday, 123 Cal. 26; Hartshorn v. Smith, 104 Ga. 235; Griffis v. Sellars, 19 N. C. 492; Boogher v. Hough, 99 Mo. 183; Welch v. Railroad, 14 R. I. 609; Root v. Rose, 6 N. D. 575; Hope v. Everett, 17 Q. B. Div. 338; Reynolds v. Kennedy, 1 Wils. 232; Newell on Malicious Prosecution, pp. 299, 300; 1 Cooley on Torts (3 Ed.), 333-4; 2 Greenleaf on Ev. (15 Ed.), sec. 457; Freeman’s note to Ross v. Hixon, 26 Am. St. 142-3; 3 Lawson’s Rights and Remedies, sec. 1093; 26 Cyc. 39-40; 19 Am. & Eng. Ency. Law (2 Ed.), 666, 667; Note to Wells v. Parker, 6 Am. & Eng. Ann. Cas. 261.”
Continuing the court said further:
“Upon principle as well as upon authority, it seems to. us that if there be a conviction by a justice or .other trial court having jurisdiction of. the case, which is., reversed upon appeal or writ of error and the accused acquitted, *355such judgment of conviction in an action for malicious prosecution should he held to be conclusive evidence of probable cause, unless it be shown that it was procured by the defendant through fraud or by means of testimony which he knew to be false.
‘ ‘ This is substantially the doctrine approved in the case of Crescent City Co. v. Butchers’ Union Co. supra, by the Supreme Court of the United States, after a review of a number of the conflicting decisions on, the subject. The conclusion reached by the court in that case, in bur opinion, does, to a great extent, as that court said, seem ‘ to reconcile the apparent contradiction in the authorities, and states the rule which we think to be well grounded in reason, fair and just to both parties, and consistent with the principle on which the action for malicious prosecution is founded.’ ” [112 Va. l. c. 441.]
This luminous and logical statement of the law after a review of all the authorities, is followed in Haddad v. Railroad, 88 S. E. 1038, and Fones v. Murdock, 80 Ore. 340 — all rendered in 1916.
It thus appears that in reason and upon the great weight of recent authority, a conviction before a justice or inferior tribunal, obtained without fraud or perjury, although reversed upon appeal, is conclusive evidence of probable cause and defeats an action for malicious prosecution. A few courts (21 Conn. 432; 63 Iowa, 214; 97 Minn. 244; 77 Neb. 626; 61 App. Div. N. Y. [a trial court] 51) have held such a conviction to be prima-facie evidence of probable cause, but no court nor text-writer has ever held that such conviction was not, at least, prima-facie evidence of probable cause.
Assuming it then to be incontrovertible that a prior conviction by a court having jurisdiction (although after-wards reversed) is, in the vast majority of cases, conclusive evidence of probable cause, and even in the few exceptional cases held to be prima-facie evidence of probable cause, and bearing in mind the fact that the convic^ tion of plaintiff was established and admitted on the trial, I cannot perceive any basis in the adjudged law, for the theory of the majority opinion expressed, to-wit: “From *356all of which we conclude that a showing of probable canse was not made under all of the facts in this case by the defensive interposition of the judgment of former .conviction;” nor the following,statement in the next paragraph: “This holding is not to be understood as precluding the showing of a former conviction as prima-facie evidence of probable cause, subject to be rebutted by proof of the reversal of the judgment of conviction in an appellate court, after a full and fair hearing of all the facts and any other relevant evidence; ’ ’ nor for the further statement on the succeeding page, that the subsequent acquittal of plaintiff was “persuasive evidence of want of-probable cause.”
In the first of these quotations it is broadly stated that a showing of probable cause “was not made” by evidence of the prior conviction .of the plaintiff. This,I think, is contrary to the universal case law, as has been shown. The second quotation, however, seems to modify the first, by stating that the “former holding?’ is not to prevent the introduction of evidence of the prior conviction as affording prima-facie evidence of probable cause, “subject-to rebuttal by proof of the judgment of conviction in the appellate court,” etc. This modification, under the facts in this case, does not remove the disharmony between the rulings and the settled law on the subject. There was not a particle of evidence with reference to the happenings at the two trials of the plaintiff, except the record showing that he was convicted by police’Judge Kimmell, now circuit judge of the city of St. Louis, on June 27th, after a trial and a plea of “not guilty;’-’ and that subsequently on another trial in the Court of Criminal Correction, before Judge Clark, he was acquitted. There is no claim or pretense that the judgment of conviction was - unfairly or fraudulently procured, as it must have been in order to do away with its presumptive force.. [See Boogher v. Hough, 99 Mo. l. c. 186.] In this state of the record and in the light even of the cases relied on in the majority opinion, that a prior conviction (although reversed) is prima-facie evidence of probable cause, it seems difficult to understand how that legal presumption could be re*357butted by proof of a fact (reversal of the judgment) which was one of the hypotheses upon which all the rulings as to the nature of the presumption arising in such cases are based. It seems to me that the logic of these two quotations is irreconcilable, even with the few cases which hold that a reversed conviction is prima-facie proof of probable- cause For if it is prima-facie, though reversed, then in the nature of things proof of the reversal cannot affect the legal presumption arising despite such reversal.
As to the third quotation, supra, from the majority opinion, I hold the law to be that where there has been no previous conviction, then an acquittal, as a part of other facts and circumstances tending to prove want of probable cause, is receivable in evidence for that purpose. But standing alone, and unaccompanied by such evidentiary facts and circumstances, it is not evidence of want of probable cause. [Williams v. Vanmeter, 8 Mo. l. c. 342; Boeger v. Langenberg, 97 Mo. l. c. 397, 398; Smith v. Burras, 106 Mo. l. c. 99 (Sherwood, J., adopting the language of Judge Cooley) ; Wilkinson v. McGee, 265 Mo. l. c. 584; Christian v. Hanna, 58 Mo. App. l. c. 45; Eckerle v. Higgins, 159 Mo. App. l. c. 186.]
In the leading case of Williams v. Vanmeter, Judge Scott said: “It cannot be maintained that in an action for malicious prosecution, proof that the defendant instigated it, and a production of the record of acquittal, will entitle the plaintiff to a verdict. . . . The acquittal, together with the circumstances under which it was effected, may be sufficient as in the case put, where, upon the calling of the cause, the prosecutor, who was in court, absented himself. . . . An acquittal is evidence of the want of probable cause to go to the jury, but of itself, and unaccompanied with any circumstances, would not be sufficient. ’ ’
Judge Scott’s ruling is in accurate accord with the doctrine laid down by Judge Cooley and adopted by this court through Judge Sherwood, in Smith v. Burras, 106 Mo. l. c. 99, viz.: ‘ ‘ The mere discontinuance of a criminal prosecution, or the acquittal of the accused, will establish *358for the purposes of this suit neither malice nor want of probable cause. But if an arrest is made in a civil suit which is afterward voluntarily discontinued, the discontinuance has been held to furnish prima-facie evidence of a want of probable cause. ’ ’ (Italics ours.)
In Christian v. Hanna, after reviewing the authorities and showing the distinction between a voluntary withdrawal of a prosecution and an acquittal of the accused after a trial by jury, it was held, with reference to the latter : ‘ ‘ The production, therefore, of a verdict of acquittal is not per se sufficient to originate the inference of want of probable cause.” [58 Mo. App. l. c. 15.]
In a still later case in the Court of Appeals, after reviewing the preceding authorities on this topic, it was said: “First, if there was a trial on the merits in the criminal case, then the introduction of the record showing the acquittal is insufficient to make a prima-facie case.” [Eckerle v. Higgins, 159 Mo. App. l. c. 186.]
I take it these excerpts establish the correctness of the foregoing views. In none of these eases was the court dealing with an acquittal where there had been a previous conviction; for had that happened the legal presumption arising from a conviction followed by an acquittal would have existí''1 as has been shown, in full vigor, and a subsequent acquittal would have possessed no evidentiary potency as against that presumption.
I conclude that this quotation from the learned majority opinion was written without connoting the fact that the limited use of a record of an acquittal, after a trial on the merits, is applicable only in cases where there has not been.a previous conviction without fraud or perjury, of the accused by a court having jurisdiction of the offense. As that is the record before us, it follows that the acquittal in this case would not be “persuasive evidence of want of probable cause.” Moreover, even if there had been no previous conviction in this case, and the record had properly presented the question ruled on in that quotation, .then the adoption of that view in the breadth stated therein, would involve the reversal of the decisions of *359this and other appellate courts in this State from the eighth Missouri Eeport to the two hundred and sixty-fifth.
For the foregoing reasons I am constrained to dissent from the views of the majority opinion in this case. I think the trial court correctly withdrew the case from the jury on the first count because the arrest by the police officer was in strict conformity to law, and on the second count because the undisputed evidence shows that defendant had probable cause for the prosecution of plaintiff.
Owing to certain changes' in the text of the majority opinion since the writing of this dissenting opinion, the quotations herein from the majority opinion are not now literally accurate as they were when made. It is evident, however, that the alterations in the learned, majority opinion do not.answer the argument or avoid the decisions set forth in the dissenting opinion, which apply with equal force to the present as to the former text. Hence it is unnecessary to add anything further to what has beén said above.