(dissenting).
The majority opinion quite correctly takes cognizance of the well-recognized principle that in this character of action the question, vel non, of probable cause is one of law for the court, the facts being certain.
It is certain beyond doubt from the “delineation” of the facts in the rehearing opinion of the Court of Appeals that the appellee, Edge, took and carried away certain personal property which “without dispute in the evidence, were the property of the appellant and were included within the indictment which was returned against the appellee and which was the basis of the instant malicious prosecution suit.”' This property he (Edge) converted to his own use or that of another. Therefore, there was no conclusion open to the trial judge but that appellant Huffstutler did have probable cause to believe that Edge had stolen the property. Brackin v. Reynolds, 239 Ala. 419, 194 So. 876, and cases cited.
It is not a question of whether Edge was in fact guilty, but whether Huffstutler, acting in good faith, and on the reasonable *105appearance of things, entertained a reasonable belief of his guilt, Torian v. Ash-ford, 216 Ala. 85, 88, 112 So. 418, and, the prosecution having been initiated by an indictment preferred by the grand jury, the burden was on the plaintiff (Edge) to establish by the evidence that the defendant (Huffstutler) did cause the indictment to be preferred through fraud, perjury, subornation, or willful suppression of known material .facts. King v. Second National Bank & Trust Co., 234 Ala. 106, 173 So. 498; Bryant v. Hartford Fire Ins. Co., 230 Ala. 80, 159 So. 685; American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176. It is quite manifest from the quoted excerpt from the opinion of the Court of Appeals, supra, that the plaintiff did not carry this burden, since undisputedly appellant did have probable cause to believe that appellee did feloniously take away his property.
The judgment seems to me to be ill-founded and I think the judgment of the Court of Appeals should be reversed.
I, therefore, respectfully dissent.
LAWSON, J., concurs in the foregoing view.