Majority
p. 206[No. 4215.] WILLIAM HIBBING v. MOSES H. HYDE.
Headnote
Malicious Pbosecutioh.—In an action for malicious prosecution of a criminal charge, the plaintiff must prove that the prosecution alleged to have been malicious has terminated by his acquittal.Appeal from the District Court, Fifth Judicial District, County of Tuolumne.
The defendant recovered judgment in the court below, and the plaintiff appealed from the judgment and from an order denying a new trial.
The other facts are stated in the opinion.
Caleb Dorsey and J. F. Rooney, for the Appellant.
Edwin A. Rodgers, for the Respondent.
The plaintiff alleges in his complaint that the defendant maliciously, and without probable cause, charged the plaintiff, before a justice of the peace, with having committed the crime of malicious mischief. Plaintiff also alleges that he was tried and found guilty of the crime charged; and this averment he succeeded in proving at the trial of the present action.
In an action for malicious prosecution of a criminal charge, the plaintiff must prove that the prosecution, alleged to have been malicious, has terminated by his acquittal. (Rhodes v. Silvers, 1 Harr. 127 ; 2 Greenl. Evidence, 252; 1 Hill on Torts, 416; Hilliard, Remedies for Torts, 385.)
Judgment and order affirmed.