In an action against several defendants for malicious prosecution, evidence that an association which they were members caused the suit to be instituted, and that defendants contributed money for that purpose, is admissible, but to render them liable it must be shown that they either voted in favor of the action of the association. or intentionally aided or contributed money in furtherance of the unlawful act.
Where the object of an association is stated in its constitution and by-1aws, which are introduced in evidence, it is for the court to determine. as a matter of law, whether such association was organized for an unlawful purpose or not, and it is error to submit that question to the jury.
What constitutes probable cause for instituting a criminal prosecution is a mixed question of law and fact. and an action for malicious prosecution the court should group the facts together in the instructions which the evidence tends to prove, and then instruct the jury if they find such facts have been established they must ind there was or was not probable cause.
Where parties are instrumental in causing a criminal action to be commenced without probable cause, they must be held liable for its continuance.
Posseesion of stolen property, after a larceny thereof, when unexplained, is evidence of the guilt of the party in whose possession it is found.
Where a party is tried on a criminal charge that the jury failed to agree and were discharged, is evidence of probable cause for the institution of the action.
Appeal from Black Hawk distict court.
Action for malicious prosecution. It is stated in the petition the defendants caused the plaintiff to be indicted for the crime of grand larceny, and that in so doing they acted ma1icious1y, and without probable cause, and that they conspired together for the purpose aforesaid that said plaintiff has been acquitted of said charge. The defendants pleaded a general denial. Trial by jury and judgment for the plaintiff, and defendants appeal.
Horace Roies and Hubbard, Clark & Deacon, for appellants. C. E. Wheeler and Piatt & Carr, for appellee.
Seevers, J. 1. The burden was on the plaintiff to establish the conspiracy charged. and that the criminal proceeding was commenced without probable cause. The plaintiff offered evidence showing his barn and contents were burned shortly after he was acquitted of the criminal charge. This evidence was objected to its immaterial, but the objection was overruled and the evidence addmitted. There were two indictments against the plaintiff. The first one was quashed, and it was generally known a motion to quash would be made. A few days prior to the convening of court, there was found, early in the morning, near the plaintiff's residence, a letter addressed to him, with which was a rope. The contents of the letter as testified to by the plaintiff, were as follows:
"In View of the present indictment we understand that you are under, we understand that you calculated to have the indictment set aside. We advise you to appear and be tried under the indictment, with the defect, if any exists, or take the lamented Gree1ey’s advice and 'go west,' or take this.
The plaintiff offered evidence of the finding and contents of the letter. To this the defendants objected on the grounds of incompetency, and it was not shown any of the defendants were connected with the letter. The objections were overruled. We have examined the large abstract with care, and have failed to find any evidence tending to show that the barn was not accidentally burned, or, if not, that any of the defendants had connection with or are in any respect responsible therefor. We have also been unable to find any evidence tending to show the letter was written by the defendants, or any of them, or that they even had knowledge of its existence. This being so, we think the foregoing evidence should have been excluded, and we can readily see and understand the defendants were greatly prejudiced by its introduction.
The defendants were members of an "anti-horse-thief association" and it is claimed the association directed or caused the criminal proceeding to be commenced against the plaintiff, and that the defendants advised and directly sanctioned what the association did by among other things, contributing money to aid the prosecution. Conceding this to be so, there is no evidence
