Lewton v. Hower

Citations

• 35 Fla. 58
• 16 So. 616

Syllabus

<p>1. In an action for malicious prosecution, when the facts are disputed, the question of probable cause in the prosecution about which the suit is brought is a mixed question of law and fact. It should not be submitted to the jury to determine the whole question. The court should determine the law, and direct the jury to find the facts in the case,</p> <p>2. In the case at bar the court having giyen the jury a definition of probable cause, instructed them as follows: “Both the questions of probable cause and malice * * are questions for the jury to determine and find from the evidence:” Held, That this instruction was not erroneous as submitting to the jury both the law and the facts of the case.</p> <p>3. It is not error for a trial court to refuse to give the jury an instruction requested by one of the parties to a suit, when there is no evidence in the case to which the instruction would be applicable.</p> <p>4. Two elements are necessary to sustain a suit for malicious prosecution: (1) malice in the prosecutor, and (2), a want of probable cause for the prosecution. The fact that there was a commital or binding over under the prosecution alleged to be malicious is an important matter of defense, but such committal or binding over does not negative the alleged malice of the prosecutor, but only the want of probable cause.</p> <p>5. A committal or binding over under a prosecution for a criminal offense is not an adjudication upon the motive of the prosecutor, but only a determination that probable cause exists to-hold the person prosecuted.</p> <p>6. It was not error in the trial court to refuse to give the following instruction to the jury, to-wit: “The action of the IT. S. Commissioner in finding sufficient cause from the evidence introduced before and considered by him as sufficient to bind the then defendant over to appear at the trial court, to that extent contradicts the charge of malice in the prosecution in preferring the charge, unless it is shown that h