McNulty v. Walker

Aenold, J., delivered the opinion of the court. The verdict was manifestly’wrong, and the instruction asked by appellant, to the effect that the jury should find for him, should have been given. In an action for malicious prosecution, it is essential for the plaintiff to show that the prosecution complained of was instituted with malice and without probable cause. Here the proof, by uncontradicted testimony, of probable cause, that is to say, of such a state of facts as would ordinarily be sufficient to produce a reasonable belief that the party charged was guilty, is abundant. It is not disputed that appellant’s hog was killed by appellee and Brassfield, nor that appellant was told by Vail that he had been informed by the McGees that they had seen appellee and Brassfield kill the hog, nor that afterward and before appellant made affidavit for the arrest, he went to Brassfield and made inquiry in regard to the matter, and that he denied that he and appellee had been in the bottom or seen appellant’s hogs. What constitutes probable cause, or whether there was probable cause for the prosecution, is generally a mixed question of law and fact, but if the facts are undisputed, it then becomes a question of law to be determined by the court. Greenwode v. Mills, 31 Miss. 464; Whitfield v. Westbrook, 40 Ib. 311; Cooley on Torts 181. In this view of the law and the facts, the judgment is reversed and cause remanded without considering other errors assigned.