*318Dissenting Opinion by
Me. Justice Horace Stern:I dissent from what I consider an unjustified reversal of the judgment of the court below.
The chief problem in the law governing malicious prosecution actions is to maintain the delicate balance between the interest of society in the enforcement of the criminal law and the protection of the individual against unjustified criminal charges involving pecuniary loss and impairment of reputation.
In the present case plaintiff recovered a verdict, and defendant has appealed from the refusal of the trial court to enter judgment in its favor n.o.v. or to grant a new trial.
It appears, according to defendant’s testimony, that for some time there had been thefts of merchandise from cars in its Harrisburg freight yards. One night Sergeant Frantz of the defendant Railroad Company’s police discovered that the seal on a freight car had been broken and that 3 out of 12 gasoline blowtorches that had been contained in a box in the car were missing. A couple of weeks later it was found that some men’s shirts had been taken from another car, some of which were thereupon discovered in an automobile belonging to a brakeman named Kurtz. The latter was taken to the office of Captain Monaghan of the Railroad police, and, upon being questioned there, he admitted that he had participated in the theft of those shirts. He also stated that he and two other brakemen had stolen some blowtorches; he identified one of these brakemen as Fred J. McCall who was a fellow workman on his shift; the “other fellow” he described as a man of approximately 5 feet 11, weighing 177 pounds, and wearing khaki clothes. It is to be noted at this point that Kurtz had known the plaintiff, Clarence W. Miller, for approximately four years, having worked with him side by side during that period; he had worked with Me-*319Gall for only two years. McCall was arrested, Ms house was searched and a blowtorch found there, whereupon he gave a written, sworn statement to Sergeant Funk of the Pennsylvania State Police in which he said that he, Miller, and Kurtz had come upon a car the seal of which had been broken and that each of them had taken from it a blowtorch. McCall testified that he did not remember whether the police mentioned Miller to him or he first mentioned Miller to them.
Sergeants Frantz and Funk went to the plaintiff’s house, searched it, and found an old blowtorch there belonging to plaintiff, hut none that had been taken from the freight car. Nevertheless they took plaintiff to the headquarters of the Railroad police, questioned him for an hour or more, and then lodged him in the city jail; later in the day they took him home where plaintiff invited them to search his house again but they refused to do so. Captain Monaghan said to plaintiff: “If you are innocent fight it the whole way”, also that “they weren’t so interested in me; that they would like to find out who else was taking property off the railroad,” and they would “make it right” with him if he would tell them “who was stealing the stuff”. Plaintiff told him he knew nothing of the matter whatever; then and at all times since he stoutly asserted his innocence, but Sergeant Frantz swore out a warrant against him on the charge of larceny, Ms affidavit alleging that plaintiff and McCall had stolen a blowtorch “valued at $100.00 more or less”. (It was testified that a blowtorch .was actually worth about $7 or $8). Sergeant Frántz and Captain Monaghan appeared, before, the Justice of the Peace; of course, they knew nothing of their own knowledge inculpating plaintiff, and they, merely presented the written statement of McCall. .The Justice held .plaintiff in $1500 bail; he was thereupon confined in jail until the following morning when his wife deposited in cash the amount *320of bail thus fixed. Two months later he was tried, together with Kurtz and McCall, by a judge without a jury, jury trial haying been waived; Kurtz pleaded guilty, McCall was found guilty, and plaintiff was acquitted and discharged.
In order for a plaintiff to recover in an action for malicious prosecution, it is incumbent upon him to prove not merely that he was ultimately acquitted of the charge against him, but that defendant, in instituting the prosecution against him, acted without reasonable and probable cause and with malice: Werner v. Bowers, 318 Pa. 518, 178 A. 831; Stritmatter v. Nese, 347 Pa. 9, 31 A. 2d 510; Simpson v. Montgomery Ward & Co., 354 Pa. 87, 96, 46 A. 2d 674, 678; Byers v. Ward, 368 Pa. 416, 421, 84 A. 2d 307, 310. While it is exclusively for the jury to pass on the truthfulness of the testimony, it is for the court to determine, as a matter of law, whether the admitted or established facts constituted reasonable and probable cause: Taylor v. American International Shipbuilding Corporation, 275 Pa. 229, 119 A. 130; Altman v. Standard Refrigerator Co., Inc., 315 Pa. 465, 480, 481, 173 A. 411, 417; Simpson v. Montgomery Ward & Co., 354 Pa. 87, 46 A. 2d 674; Byers v. Ward, 368 Pa. 416, 421, 422, 84 A. 2d 307, 310. Malice need not be independently and affirmatively proved, but may be inferred from the absence of reasonable and probable cause: Smith v. Walter, 125 Pa. 453, 468, 17 A. 466; Taubman v. Schulte, Inc., 302 Pa. 170, 172, 153 A. 150, 151; Hubert v. Alta Life Insurance Co., 130 Pa. Superior Ct. 277, 284, 196 A. 513, 516.
Did plaintiff, then, in the present case sustain the burden of proving defendant’s lack of reasonable and probable cause for instituting the x>rosecution against him? There was testimony (1) that plaintiff is a married man 33 years of age and the father of a 14 *321year old daughter, that he is the graduate of a senior high school, that he worked during a period of 16 years for various commercial and industrial concerns and for 4y2 years for the Pennsylvania Railroad itself, and that he had never previously been accused of any offense other than traffic violations; (2) that he was acquitted of the charge made against him by defendant; (3) that he had at all times protested his innocence; (4) that a, search of his house had failed to disclose his possession of any stolen blowtorch although, if he had taken it, it would unquestionably have been found there since the taking of these blowtorches was obviously for personal use, only 3 having been removed from a box of 12; McCall had in his home the one he had taken, but plaintiff already had his own, which he showed to the police; (5) that, whatever the other thefts that may have occurred in defendant’s freight yards and in which McCall and Kurtz participated, there was not the slightest suggestion or accusation on the part of anyone that plaintiff was implicated therein; (6) that the mere fact that plaintiff worked on the same shift as Kurtz and McCall certainly did not warrant any inference or belief that he had joined in the thefts which those men may have committed; (7) that the only information upon which defendant’s police even professed to act was that given to them by Kurtz and McCall, — information hereinafter discussed —and that their own investigation as to the reliability of that information by searching plaintiff’s house left it utterly devoid of corroboration. Thus it is abundantly clear that plaintiff proved not merely his acquittal but a whole series of collateral facts and circumstances ivhich revealed the wholly tenuous and inadequate grounds upon which defendant acted. What more, it may be asked, could he possibly have proved to make out a prima facie case of a lank of reasonable and probable cause?
*322Since defendant relied upon the statements made by Kurtz and McCall, an analysis of the testimony in regard to those statements is in order. Kurtz immediately identified McCall as one of those guilty of the theft, but he did not identify plaintiff; if he had been able to do so, why, haying known plaintiff for over four years, did he not name him as he named McCall (with whom he had worked for only two years) instead of describing the “other fellow” as being of an approximate weight and height? Such a method of description, so far from justifying a belief that he was accusing plaintiff, would, on the contrary, lead to exactly the opposite conclusion; it would indicate that he did not actually know who the “other fellow” was. All, therefore, that defendant had to act upon was the statement of McCall, and the learned trial judge in the court below properly characterized that statement as having been made “under dubious circumstances” since McCall testified that he could not remember whether he had named plaintiff or whether he had merely assumed plaintiff’s guilt because his name was suggested to him by the police. Moreover it is hornbook law that the word of a confessed criminal accusing another of participation in the crime must be closely scrutinized, and, unless corroborated, must be accepted with caution before it may be relied upon, since such information comes from a corrupt source: Commonwealth v. Haines, 257 Pa. 289, 297, 101 A. 641, 644; Commonwealth v. Turner, 367 Pa. 403, 409, 410, 80 A. 2d 708, 711, 712. As stated by Judge Brewer (later Mr. Justice Brewer of the United States Supreme Court) in' Blunk v. Atchison, T. & S. F. R. Co., 38 P. 311, 313 314: “. . . if a reputable citizen-. . . or any man of'known integrity, makes an affidavit.in.which he-details his own'knowledge of a crime, and a person acts upon that affidavit, he acts with probable cause in' instituting - a prosecution for the offense. But where a person .:. ; of con*323fessed criminality . . . makes a statement in respect to crime, not merely in reference to himself, but implicating others, then common prudence requires that the truth of that statement should he investigated before the persons named in it are charged with crime. If, however, . . . the party to whom that confession is made investigates those particular statements, and finds that they are substantially accurate, and acts upon that information thus verified by personal investigation and information, he is acting upon probable cause.” (italics supplied). In Restatement, Torts, §662, comment (i), it is said: “In determining whether an investigation should be made, the following factors are important; . . . the character of the source from which the accuser’s information comes. The accuser may properly be required to make inquiry as to the veracity of his informants where his belief is founded upon their information.” It is a serious matter publicly to brand any person — however humble —as a thief, unless there is reasonably good ground to warrant the making of such an accusation, and here there was none.
In short, then, the court below was wholly justified in refusing to find as a matter of law that defendant had acted in this prosecution on reasonable and probable cause. Plaintiff was put in jail, subjected to a criminal trial, and the account of the charge against him published in the newspapers of Harrisburg, where he lived, to the impairment of his reputation, on the mere statement of a confessed thief given “under dubious circumstances” that plaintiff, like himself, had stolen a blowtorch, — a statement which not only was uncorroborated by other facts or circumstances, but, on the contrary, was affirmatively found,, as a result of the investigation made by defendant’s police, to be without support. An exhaustive reading of all the authorities reveals no case in which there was held to be *324reasonable and probable cause for a prosecution where the facts relied upon were as flimsy as those here present.
This brings me, then, to defendant’s claim for justification by reason of testimony given by Sergeant Frantz that, after plaintiff had been “placed in the Harrisburg City Jail for safekeeping”, Frantz and Captain Monaghan “referred the case in person to Assistant District Attorney Keene of Dauphin County, Harrisburg, and presented him with the facts of the case. And Mr. Keene directed us to proceed with the prosecution of the three mentioned men.” The first observation to be made with reference to that testimony is that it constitutes merely an oral statement, and as such cannot, of course, be assumed by the court, as a matter of law, to be factually true. It seems scarcely necessary to refer in support of that proposition to the case of Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523, an authority declaring so fundamental a principle of evidence that it has been cited by our appellate courts 92 times during the 20 years which have elapsed since it was decided. It must be immediately manifest that plaintiff, while not admitting the truth of that testimony, could not possibly have refuted it, not having been a party to the alleged interview with the district attorney, and especially so in this case because Mr.. Keene had since died. Obviously it would' be absurd t.o hold- that a defendant in any case of malicious' prosecution may' always obtain judgment in his. favor- merely'by asserting, whether truthfully. or otherwise,. that he ■ had <■ consulted counsel or the prosecuting ;official, — a fact-which would not-lie within the.cognizance, of 'the- plaintiff and therefore be beyond Ms'ability to’rebuff
But thefe is án even more serious answer to defendant’s- contention^ - The mere-cryptic statement that *325members of defendant’s police force referred the matter to the district attorney and “presented him with the facts of the case” is wholly insufficient under the authorities to constitute a defense determinable by the court as a matter of law. It is only if the advice of an attorney or the direction of a district attorney is sought in good faith and after a full disclosure of all the facts within the accuser’s knowledge and information that such advice or direction is effective to disprove the existence of malice in the institution of the prosecution, and it is for the jury to determine whether such good faith existed or whether the advice was merely to protect the accuser from liability for initiating proceedings upon which he may already have decided; this is especially important in the present case where defendant’s police had already placed plaintiff in jail before they claim to have conferred with the district attorney. It is also for the jury to find to what extent there was a full disclosure of all the facts or whether material non-supporting facts were withheld: Restatement, Torts, §666, and comment (g). For example, did they tell the district attorney about their searching plaintiff’s house and finding no stolen blowtorch there? Had they done so the district attorney’s opinion might well have been, and probably would have been, quite different. It was held in Smith v. Walter, 125 Pa. 453,17 A. 466, that it was error in that case for the trial judge to charge the jury that, if they believed defendant’s counsel spoke the truth when lie testified that the defendant had told him the facts of the case and on the basis of those facts he had advised prosecution, they should find a verdict for defendant. Mr. Justice Mitchell there said (p. 468, A. p. 466) that this was “an incorrect statement of the law, because it omitted all reference to the truthfulness and completeness of the defendant’s statement to his counsel. Every word *326of Mr. Derr’s testimony could be absolutely true, and yet the statement made to him by his client might be so incomplete, so lacking in some essential facts, so uncandid, or colored by malice or prejudice, as to be no defense at all. . . . The real issue was whether defendant had made a fair and full statement of the facts to his counsel, and then in good faith followed his advice. This cardinal fact the court took away from the jury, by assuming that the statement as testified to by Derr and his client, was sufficient in law, and leaving only to the jury the fact that it had been made. This was an encroachment on the province of the jury.” (italics supplied).
In Aland v. Pyle, 263 Pa. 254, 257, 258, 106 A. 349, 350, it was said, per Mr. Justice Walling: “The fact that a prosecution is instituted upon advice of counsel after a fair statement of the facts is not conclusive evidence of the absence of malice. ‘It is not the advice, however, that rebuts the presumption of malice, but the innocence of defendant’s conduct, of which his seeking advice is merely evidence; and whether the advice is a good defense depends upon the good faith with which it is sought and followed, and this is a question for the jury to determine from the' evidence.’ ” (citing Smith v. Walter, supra). In Farneth v. Commercial Credit Co., 313 Pa. 433, 441, 169 A. 89, 92, Mr: Justice Sgi-iapfer said: “The defendant offered evidence to show that the prosecutions were instituted upon the advice of counsel. In itself, this is not a complete defense. It must further be shown that a full disclosure of the facts was made and that good faith was exercised in seeking the advice.” (italics supplied). See also: Groda v. American Stores Company, 315 Pa. 484, 493, 494, 173 A. 419, 422, 423; Randall v. Fenton Storage Co., 117 Pa. Superior Ct. 212, 217, 218, 177 A. 575, 577, 578; Heisey v. Vansant, 126 Pa. Superior Ct. 373, *327380, 381, 190 A. 726, 730; Hubert v. Alta Life Insurance Co., 136 Pa. Superior Ct. 147, 152, 7 A. 2d 98, 101. All these cases are to the effect that the fact of the prosecutor’s obtaining legal advice and acting thereon is to be considered as tending to rebut malice rather than as bearing upon the issue of probable cause, and that whether or not the presentation to counsel or the prosecuting officer was adequate and fair and whether it was sought and acted upon in good faith is in every instance a question for the jury.
Defendant, in addition to asking for judgment n.o.v., moved for a new trial on the ground that the court had improperly permitted cross-examination of the witness McCall. McCall was called by defendant to identify his signature to the statement given by him to the police, whereupon counsel for plaintiff cross-examined him at length as to the circumstances under which he made, signed and swore to the statement and the conversations that had taken place between him and the police in reference thereto. The extent of permissible cross-examination is largely a matter for the discretion of the trial court, and here I see no abuse of that discretion. Since the identification by McCall of his signature carried with it an inference that the contents of the statement were voluntarily made and assented to by him, it was proper to attempt to elicit from him that the fact stated therein in regard to plaintiff’s complicity in the theft was made upon the suggestion of the police rather than of his own initiative: see Smith v. Philadelphia Traction Co., 202 Pa. 54, 51 A. 345; Conley v. Mervis, 324 Pa. 577, 188 A. 350; Lester v. Century Indemnity Co., 356 Pa. 15, 18, 50 A. 2d 678, 680.
Holding, as I do, the views thus expressed, I earnestly dissent from the present decision reversing the judgment of the court below.
*328June 26, 1952: Mr. Justice Jones and Mr. Justice Musmanno concur in this dissenting opinion.