This is a conviction for malicious prosecution. It-is objected that the court charged the jury, article 273 of the Penal Code, over objections of defendant. This prosecution was had under article 273, it is true; but the information does not allege that the prosecution was for the purpose of extorting.money from another, or for the purpose of securing the payment or security for a debt due the accused by the person prosecuted. The information charges that the prosecution was instituted “for the purpose and with the intent to vex, harass, and injure one J. M. Hackett.” It was error to give in charge to-the jury any part of said article not embraced in the information; and as appellant excepted at the time and reserved his bill, the judgment, for this error must be reversed.
Appellant did not testify. Counsel for the State, in his closing argument, said to the jury: “Gentlemen of the jury, Paul Reed swore in. the complaint he made against J. M. Hackett that Hackett used loud and vociferous language in the town of Roby, but did he get on the-stand and swear it?” To this appellant objects. That counsel for the-State did use such language appears by bill of exceptions. This is error-requiring that the judgment be reversed. This error is confessed by the Assistant Attorney-General. Gen. Laws 21st Leg., p. 37; Hunt v. The State, 28 Texas Ct. App., 149.
The third paragraph of the charge is subject to the objection urged by counsel for the appellant. It requires the jury to believe from the-evidence that appellant was not guilty of malicious prosecution in order to an acquittal. This charge was excepted to at the time. It is true-that, when taken as a whole, the jury might not have been misled, but-they may have been; and hence, as the charge was excepted to at the time, the judgment for this error must be reversed.
Over objections, the State introduced in evidence the verdict of acquittal in the case against Hackett. This was error. Dempsey v. The State, 27 Texas Ct. App., 269.
The court should have defined malice; should have instructed in regard to the want of probable cause, as was requested by counsel for the-defense. Dempsey v. The State, supra.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.