Where deceased met death in consequence of the collision of a vehicle driven by the defendants with that in which the deceased was riding, the criminal responsibility of the defendants is estimated, not so much by the question as to whether they were guilty of allowing their team to run, as the question whether their negligence and wanton recklessness was the cause directly of the collision: Belk v. People, 125 Ill. 584.

MEDIS AND HILL v. STATE.

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127 TEXAS APPEALS, 194.]

CRIMINAL LAW. — JOINT VERDICT AGAINST JOINT OFFENDERS must assess a separate penalty against each, to be valid. CRIMINAL LAW-SODOMY ACCOMPLICE. Where in sodomy the prosecuting witness consents to the act, he is an accomplice whose testimony must be corroborated; and where the evidence is such as to leave the question of consent in doubt, the jury must be instructed that if they find that he consented they must then find that he was corroborated, in order to convict.

McLemore and Campbell, and S. T. Fontaine, for the appel lants.

W. L. Davidson, assistant attorney-general, for the state.

HURT, J. The appellants were jointly indicted, tried, and convicted of sodomy, the verdict of the jury being: "We, the jury, find Charles Medis and Ed Hill guilty as charged of sodomy, and assess the punishment at ten years' confinement in the penitentiary."

Appellants contend by their counsel that this is not a good or legal verdict. This proposition is now well settled in favor of appellants: Flynn v. State, 8 Tex. App. 398; Sterling v. State, 25 Id. 716; Cunningham v. State, 26 Id. 83; Calico v. State, 4 Ark. 430; Straughan v. State, 16 Ark. 37.

Appellants were charged with committing the act upon one Milton Werner. Upon the trial, Werner was introduced as a witness for the state, and his testimony was relied on for a conviction. The court failed to give instructions to the jury relating to the necessity of corroborating said witness, counsel for appellants contending that Werner was consenting, and was therefore an accomplice. Upon this subject, says Bishop: "When this offense is committed on a non-consenting person who becomes a witness, it appears that his early complaint may be shown in corroboration, the same as those of the injured woman in rape. If such person had con

sented, he would be an accomplice whose testimony would for this reason need corroboration": 2 Bishop's Crim. Law, 1018. Werner was evidently consenting; but if the evidence should leave this in doubt, it would then become a question for the jury, and not the court, to determine, under the proper instructions, whether the person was or was not consenting; and the jury should in such a case be instructed that if they found that he was consenting, then they must find that he was corroborated.

Reversed and remanded.

CRIMINAL EVIDENCE ACCOMPLICES. One cannot be convicted upon the testimony of an accomplice, unless corroborated by other evidence tending to connect defendant with the crime committed: Blakeley v. State, 24 Tex. App. 616; 5 Am. St. Rep. 912, and note 917; People v. Kraker, 72 Cal. 459; 1 Am. St. Rep. 65, and note 67. Compare People v. Dow, 64 Mich. 717; 8 Am.

St. Rep. 873, and note 876.

DEMPSEY V. STATE.

127 TEXAS APPEALS, 269.]

MALICIOUS PROSECUTION-INFORMATION. In an action for malicious prosecution under article 273, Penal Code of Texas, it is not necessary to allege in the information that the alleged malicious prosecution had ended before the information was presented.

MALICIOUS PROSECUTION - MALICE. To convict for malicious prosecution, the prosecution alleged to have been malicious must be proved to have been actuated by malice.

MALICIOUS PROSECUTION. - LEGAL MALICE is an unlawful act done willfully and purposely to the injury of another. MALICIOUS PROSECUTION

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- MALICE PROBABLE CAUSE. To convict for malicious prosecution, it must be proved that there was legal malice actuating the wrong done, and also want of probable cause for instituting the alleged malicious prosecution; and though it was actuated by malice, still defendant cannot be convicted if the proof shows that he had probable cause for instituting the prosecution. MALICIOUS PROSECUTION. 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 offense for which he was prosecuted. MALICIOUS PROSECUTION EVIDENCE. - In criminal malicious prosecution based upon a discharge from a criminal charge, the evidence of the justice before whom the first trial was had, that the evidence there was not sufficient to sustain the charge, is inadmissible, and calculated to injure defendant.

CONVICTION for malicious prosecution. The opinion states the facts.

AM. ST. REP.. VOL. XI.-18

J. D. Owen, for the appellant.

W. L. Davidson, assistant attorney-general, for the state.

WILLSON, J. This prosecution is under article 273 of the Penal Code, which reads: "If any person in this state, for the purpose of extorting money from another, or the payment or security of a debt due him by such other person, or with intent to vex, harass, or injure such person, shall institute, or cause to be instituted, any criminal prosecution against such other person, he shall be deemed guilty of malicious prosecution, and upon conviction, shall be fined not less than one hundred nor more than one thousand dollars, or be imprisoned in the county jail not less than one month nor more than one year." This article of the Penal Code is an addition to the original code made in revising, and this is the first conviction thereunder which has been before this court.

In the information the charge is alleged as follows: "Did then and there unlawfully, for the purpose and with the intent to vex, harass, and injure one Thomas Kelley, willfully institute, and cause to be instituted, against the said Thomas Keny, in justice's court of precinct number one of Jackson County, Texas, a criminal prosecution, as follows, to wit: The State of Texas v. Thomas Kelley, number eighty-three,' charging the said Thomas Kelley, by complaint made before H. T. Chivers, county attorney of said county, which complaint was filed by William Payson, the justice of the peace in and for said precinct number one, with unlawfully and willfully tying and staking out, and causing to be tied and staked out, to graze within the inclosed lands of the said Daniel Dempsey, a horse."

We are of the opinion that the information is a good one. It follows the words of the statute, and is sufficiently specific. The specific exception made to it, that it does not aver that the prosecution against Kelley had ended before the presentment of the information, is not well taken, as the statute makes no such requirement. In a civil suit for damages for malicious prosecution, it is essential to allege and prove that the alleged malicious prosecution had terminated before the institution of the suit, because in such case it cannot be known whether or not there was any injury until there has been an acquittal of the charge, nor what the extent of the injury might be. And a civil suit is not maintainable at all if there has been a conviction upon the criminal charge: Glasgow v.

Owen, 69 Tex. 167; McManus v. Wallis, 52 Id. 535; Usher v. Skidmore, 28 Id. 617; 2 Greenl. Ev., sec. 452; Cooley on Torts, sec. 186. But it does not appear to us that the above-stated rule is applicable in the case of a criminal prosecution under article 273 of our Penal Code. In such case we think it is immaterial whether or not the alleged malicious prosecution had terminated at the time of the filing of the indictment or information. The reason for the rule in a civil suit does not exist in the criminal case, and it does not seem to be contemplated by said article that it shall exist in such case.

There are certain rules, however, governing in a civil suit for malicious prosecution, which, in our opinion, obtain in a criminal prosecution such as the one before us. These rules are not expressly declared or required to be observed by article 273, but they are, nevertheless, within the intention of that article. The first of these rules is, that the prosecution alleged to have been malicious must be proved to have been actuated by malice. Legal malice is defined as follows: "Any unlawful act done willfully 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, willfully done to the injury of another, constitutes legal malice: Ramsey v. Arrott, 64 Tex. 322; Glasgow v. Owen, supra.

The second rule is, that there must not only be legal malice actuating the wrong done, but there must be a want of probable cause for instituting, or causing to be instituted, the alleged malicious prosecution, and the evidence on the trial must show such want of probable cause. "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": Ramsey v. Arrott, supra; Glasgow v. Owen, supra; Gabel v. Weisensee, 49 Tex. 131.

In this prosecution, therefore, as we construe the statute creating this offense, it was essential for the state to prove, 1. That the defendant instituted, or caused to be instituted, against Kelley the prosecution named in the information, being actuated thereto by malice, with the purpose and intent to vex, harass, and injure said Kelley; 2. That he instituted, or caused to be instituted, said prosecution without probable cause, as that term has been above defined.

It is certainly not the meaning and intent of the statute to

punish one for prosecuting supposed crime, who does so with probable cause, although he may do so for the purpose of vexing, harassing, and injuring the person prosecuted. To otherwise construe the statute would, it seems to us, make it operate against public policy. It would deter citizens from commendable efforts to bring criminals to justice. A man would fear to institute a prosecution, however meritorious it might be, knowing that he might himself be prosecuted and punished merely upon proof that he instituted it for the purpose and with the intent to vex, harass, and injure the prosecuted party, without regard to the evidence of such party's guilt of the charge.

As we understand the statute, it is intended to punish a person who, without probable cause, actuated by malice, not in good faith, institutes a criminal prosecution against another for the purpose and with the intent to vex, harass, and injure such other person. It is intended to prevent groundless prosecutions, and not such as there is legal evidence to justify a reasonable belief that the person prosecuted is guilty of the crime charged.

In this case, while the evidence is perhaps sufficient to show that the defendant was actuated by malice,-by a purpose and intent to vex, harass, and injure Kelley by the criminal prosecution,-it further shows that he had probable cause for instituting such prosecution. It shows that Kelley was a principal in the offense of staking out the horse in the defendant's inclosure, and was in fact guilty of the charge preferred against him in the alleged malicious prosecution. We are of the opinion, therefore, that this conviction is unwarranted by the evidence and the law.

We are further of the opinion that the court erred in permitting the justice of the peace to testify that, in the alleged criminal prosecution against Kelley, he discharged said Kelley because, in his opinion, there was not sufficient evidence to sustain the charge. We think the result of that prosecution was immaterial, and the opinion of the justice of the peace as to the sufficiency of the evidence was clearly incompetent, and calculated to injure the defendant.

For the errors mentioned, the judgment is reversed, and the cause remanded.

MALICIOUS PROSECUTION PROBABLE CAUSE: See Boeger v. Langenberg, 97 Mo. 390; 10 Am. St. Rep. 322, and note; Paddock v. Watts, 116 Ind. 146; 9 Am. St. Rep. 832, and note.