Ramsey v. Arrott

Citations

• 64 Tex. 320

Syllabus

<p>1. Malicious prosecution — Malice — Probable cause.— To sustain an action for malicious prosecution the plaintiff must establish the existence of malice, and the want of probable cause. Circumstances attending the prosecution may be of such a character as to satisfy the mind that the party was actuated by wrongful motives in conducting the prosecution. This wrong motive, coupled with a wrongful act wilfully done to the injury of another, constitutes legal malice, and its existence may be established by circumstantial evidence.</p> <p>2. Same.— Probable cause is “ 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 crime for which he was prosecuted.” Following 24 How., 545.</p> <p>3. Same.— In deciding upon the existence of probable cause, the prosecutor’s belief in the guilt or innocence of the party cannot be considered, nor does the existence of such facts as might influence his judgment have any weight, but the test is the effect they might have upon the judgment of others. When the facts are not contested and the evidence not contradictory, the question of probable cause is a matter of law to be decided by the court; otherwise it is a mixed question of law and fact to be decided by the jury.</p> <p>4. Advice of counsel. — Evidence that an attorney, upon a full and fair presentation of the facts, advised the prosecution, is entitled to be considered .in the determination of the issue of malice, but such evidence does not establish the existence of probable cause; such evidence is admissible as tending to establish good faith, and to repel any inference of malice deducible from circumstances showing a want of probable cause. A resort to professional advice, under certain circumstances, might be sufficient to establish good faith and repel any inference of malice, but it does not necessarily constitute a conclusive presumpt