Dempsey v. State

Citations

• 27 Tex. Ct. App. 269
• 11 S.W. 372
• 1889 Tex. Crim. App. LEXIS 34

Syllabus

<p>1, Malicious Prosecution—Information.—In a criminal action for malicious prosecution under article 273 of the Penal Code, it is not essential that the information shall allege that the prosecution against the injured party had ended before the information was presented. See the opinion for an information held sufficient to charge such a malicious prosecution as constitutes the offense defined in said article 273.</p> <p>3, Same.—To authorize a conviction for malicious prosecution, the proof must show that the prosecution alleged to be malicious was actuated by malice.</p> <p>8. Same—Term Defined—“Legal Malice.”—“Any unlawful act done wilfully and purposely to the injury of another is as against that person malicious; this wrong motive, when it is shown to exist, coupled with a wrongful act, wilfaily done to the injury of another, constitutes legal malice.”</p> <p>4 Same.—Hot only must the. proof show that the alleged, malicious prosecution was actuated by legal malice, but it must show a want of probable cause for instituting the alleged malicious prosecution. By probable cause is meant the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the offense for which he was prosecuted. Under this rule a prosecution, although instituted with legal malice, would not he a penal offense if probable cause existed to believe the offense charged was committed by the party prosecuted. See the opinion on the question; and note that in this ease though legal malice existed, probable cause also existed.</p> <p>8. Same—Evidence.—On the trial, the court below permitted the justice of the peace before whom the alleged malicious prosecution was had to testify that he discharged the alleged injured, party, because, in his opinion, the evidence did not support the charge brought against him. Held, error.</p>