on May 6, 1909, to the credit of plaintiff on job 9 a check for five hundred dollars, and on June 22, 1909, a check for two hundred dollars; that the money represented by these checks and a prior check for five hundred dollars were deposited to the credit of plaintiff on job 9 and on plaintiff's demand for money to pay the lumber bill and hardware bill and other items asserted in the criminal complaint pertaining to that job, and for that express purpose, and that plaintiff did not use the money so paid and deposited to his credit to pay the hardware bill at all and made but a partial payment, as stated in the criminal complaint on the lumber bill.

He testified further that before making the criminal complaint he had called on the district attorney of San Diego County and stated to him the facts as they are set forth in the criminal complaint and was advised by the district attorney that upon those facts the plaintiff was guilty of embezzlement and advised his arrest; that the district attorney prepared the criminal complaint and defendant swore to it.

On cross-examination defendant admitted that he had not told the district attorney that he had made these payments to the plaintiff by depositing them to his credit in the bank or that during the dispute between them a few days prior to making the complaint the plaintiff had offered to submit any grievances asserted by defendant and all differences between them to arbitration by disinterested persons. In this same connection it is claimed that by the testimony of the defendant himself and as otherwise appearing, the defendant did not make a full and fair disclosure of the facts to the district attorney as he knew them to exist when he consulted him as to the prosecution of the plaintiff.

The district attorney testified that upon the facts stated to him by the defendant he advised defendant that plaintiff was guilty of felony embezzlement and drew the criminal complaint sworn to by defendant; that after the discharge of plaintiff on the preliminary examination he advised the defendant to bring the matter to the attention of the grand jury when it convened; that he notified the defendant after the grand jury met and appeared with defendant before that body, but nothing appears to have resulted therefrom.

Aside from the altercation, in detailing which plaintiff stated that defendant threatened physical violence and at

tempted to carry it into execution on July 11, 1909, the plaintiff offered testimony to show that defendant had, after the discharge of the plaintiff on the preliminary hearing, stated to a person for whom plaintiff had built a house that a lien had been placed on it, when in fact it had not. About a week or two after the preliminary examination a lumber dealer who had supplied materials for one of the houses called on defendant for payment of a bill for lumber supplied to plaintiff. He testified that the correctness of his bill coming up in the discussion and the plaintiff being referred to, the defendant made certain statements from which the witness inferred that defendant did not think plaintiff honest; that "he thought Runo ought to be behind the bars and that he would get him there yet." This testimony was introduced by plaintiff to show express malice on the part of the defendant towards plaintiff in making the criminal charge, and is the principal, if not the only, evidence on the issue of malice, save the inference thereof which the jury would be warranted in drawing from the finding of want of probable cause, in making the criminal complaint. Defendant did not testify respecting the statements attributed to him, but denied any attempt to inflict violence upon plaintiff during their dispute.

There was other evidence in the case, but what we have recited is sufficient for the consideration of the principal points involved in this appeal.

As to the rule for assessing damages the jury were instructed that if their verdict should be for plaintiff they might assess not only actual damages but also exemplary damages which are administered at law by way of example.

The jury returned a general verdict in favor of plaintiff for five thousand dollars.

Defendant moved for a new trial and the court ordered that unless plaintiff remitted one half of the judgment and all accumulated interest the motion would be granted. Plaintiff filed the required remission and the motion for a new trial was thereupon denied. Defendant appeals from the judgment and the order denying his motion for a new trial.

It is claimed by appellant that the evidence is insufficient to sustain the verdict. We do not pursue this matter. It is sufficient to say that the evidence here was, as it is usually in contested cases, in conflict on all material issues and that

CLXII Cal.-15

being the situation this court has no jurisdiction to disturb the verdict.

The principal complaint of appellant is as to certain rulings of the court on the admission of testimony and respecting instructions to the jury.

When the defendant was on the stand after testifying as to the facts and circumstances upon which he claimed the criminal charge made by him against the plaintiff was based, he was asked by his counsel: "What was your motive and reason for instituting the criminal prosecution against Mr. Runo?" Fur ther, "Whether in instituting the criminal prosecution you were actuated by malice, hatred or ill feeling or whether you were actuated by an honest belief that he was guilty of the offense that you charged against him?" Still further, whether, "When you instituted the criminal prosecution you honestly believed in good faith that he was guilty of the offense as charged against him?" Objections to these questions on the ground that they called for the opinion and conclusion of the witness and were incompetent, irrelevant, and immaterial were sustained. These rulings are assigned as error and we are satisfied that the assignment is well taken.

The two essential facts which must concur to support an action for malicious prosecution are want of probable cause and malice and the burden of proving both is upon the plaintiff. Malice in fact is really the foundation of the action and is usually the pivotal point upon which the action turns. is always a fact directly in issue. Its existence may be inferred by the jury from want of probable cause for the prosecution or from acts or declarations of the defendant expressing or indicating prejudice, ill-will or malicious motive in the matter of the prosecution. The want of probable cause does not raise a legal presumption of malice; the law presumes nothing on that issue any more than it does on any other issue of fact in a civil action. The jury may, however, if they find that there was no probable cause for the prosecution infer malice therefrom, although malice is not a necessary inference to be deduced therefrom. But in whatever way it may be proven, whether by inference from want of probable cause or by acts or declarations of the defendant manifesting prejudice or ill-will, it must be proven as a fact. This being true, and it being equally true that whatever the plaintiff

must prove, the defendant may disprove, the latter has an unquestioned right to introduce any competent evidence to show that he had probable cause for instituting the criminal prosecution or that even if he did not have, he was not actuated by malice in doing so. It is to be noted in this connection that in support of the defense of probable cause, it must appear that the defendant had reasonable grounds to believe and that, in fact, he did believe the charge he made was well founded. It is not sufficient that the facts and circumstances were such as would lead a reasonable and prudent man to believe that the offense charged was committed, but it must also appear that he acted upon them in an honest and reasonable belief that the plaintiff was guilty. Probable cause is, in effect, the concurrence of the belief of guilt with the existence of facts and circumstances reasonably warranting the belief. (Harkrader v. Moore, 44 Cal. 144; Dawson v. Schloss, 93 Cal. 194, [29 Pac. 31].)

It is apparent, therefore, that a belief in the guilt of the plaintiff as to the offense charged was one of the relevant and pertinent facts to be shown by the defendant in support of his claim of probable cause in making the accusation.

Nor can it be claimed that in addition to proof of his honest belief in the guilt of the plaintiff, it is not equally pertinent on the distinct issue of malice for the defendant to show such belief and his reason, motive, and good faith in making the criminal charge.

As a general proposition the right of a defendant to present evidence on these matters as bearing on the issues of probable cause and malice may not be disputed and the only question is must the state or condition of mind of the defendant, respecting belief, motive, and good faith be restricted to proof of acts and circumstances accompanying or surrounding the accusation, or in addition thereto, is the defendant a competent witness to testify directly respecting them. Under the uniform rule of the authorities he unquestionably is.

The rule is well settled in this state and other jurisdictions that where the malice, intent, or motive of the party is under the issues in the case a material fact to be established, the testimony of the party himself directly to the point is competent evidence to prove it. (Mowry v. Raabe, 89 Cal. 606, [27 Pac. 157]; Fleet v. Tichenor, 156 Cal. 343, [34 L. R. A.

(N. S.) 323, 104 Pac. 458]; Walker v. Chanslor, 153 Cal. 118, [126 Am. St. Rep. 61, 17 L. R. A. (N. S.) 455, 94 Pac. 606]; Barnhart v. Fulkerth, 93 Cal. 497, [29 Pac. 50]; Kyle v. Craig, 125 Cal. 107, [57 Pac. 791].) The case nearest in character to the one here where the rule was applied is Fleet v. Tichenor, 156 Cal. 343, [34 L. R. A. (N. S.) 323, 104 Pac. 458] an action for damages for slander where it is said: "The trial court sustained objection to two questions asked the defendant as to whether or not she was actuated in anything she had said or done by any wish or desire or any design or purpose to injure plaintiff. The questions were proper, both to show absence of actual malice for the purpose of avoiding exemplary damages and under the defense of privileged communication, and the court erred in overruling them. The general rule is well settled that, under our system, a witness may be examined as to the intent with which he did a certain act, when that intent is a material thing in the action. A jury or trial judge is not bound, of course, to believe the witness when he says he did not have a certain intent, but may find in the circumstances, actions and language an entirely different intent, but the testimony of the witness 'is competent and relevant and not immaterial.'" So in this case, as we have pointed out, the direct testimony of the defendant as to his belief, motive, and intent in making the criminal charge was competent evidence on the question of malice in fact, and pertinent also to his defense of the existence of probable cause for the prosecution.

The general rule announced is the one obtaining in other jurisdictions and applied in numerous cases where the actions were, as here, for malicious prosecution and the questions put to the defendants were practically identical with those which were asked of the defendant in this case. In the following cases the direct question put to the defendant was whether when he made the complaint he believed it to be true or believed plaintiff guilty: Spalding v. Lowe, 56 Mich. 366, [23 N. W. 46]; Garrett v. Mannheimer, 24 Minn. 193]; Sparling v. Conway, 75 Mo. 510; Turner v. O'Brien, 5 Neb. 542; McKown v. Hunter, 30 N. Y. 625; White v. Tucker, 16 Ohio St. 468. In the following cases the direct inquiry was made of defendant as to his motive in making the charge: Flickenger v. Wagner, 46 Md. 600; Leak v. Carlisle, 75 N. Y. Supp. 382;