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. It 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;

Schwarting v. Van Wie etc. Co., 60 App. Div. 475, [69 N. Y. Supp. 978]. In others the direct inquiry put to the defendant was whether in making the charge he was actuated by malice or ill-will: Coleman v. Herwick, 2 Mackey, (D. C.) 189; Campbell v. Baltimore & O. R. R. Co., 97 Md. 341, [55 Atl. 532]; McCormack v. Perry, 47 Hun, (N. Y.) 71; Heap v. Parrish, 104 Ind. 36, [3 N. E. 549]. In the case of Van Sickle v. Brown, 68 Mo. 627, the direct question asked of defendant was whether he acted in good faith in making the charge, and in Sherburne, Admr. etc. v. Rodman, 51 Wis. 479, [8 N. W. 414], the court was considering rulings upon direct questions asked the defendant upon all of the above matters in the same manner in which they were directed to the defendant in this

case.

In all the cases cited (without quoting from them) the right to make the direct inquiry on these matters was sustained on appeal or the cases were reversed for refusing to permit answer to such direct inquiries. (See, also, 3 Elliott on Evidence, sec. 2479.)

In their brief counsel for respondent fail to make any argument or to cite any authority sustaining the ruling of the trial court on these questions. Their position on the subject simply is that "the appellant was permitted to present every fact and circumstance tending to show his motive." The complete answer to this suggestion is, as we have just pointed out, that the court erroneously refused to permit him to introduce competent evidence on this very material subject. It is further suggested that the trial court decided on the motion for a new trial that in view of all the other evidence, any statement of appellant as to his motive could not change the result. Any decision to that effect does not appear in the record and would be of no consequence if it did. The evidence was competent and material to go before the jury and defendant had the right to have the jury determine, as is their exclusive province, the credit, weight, and effect to be given to it, and not the court.

It is further claimed by appellant that the court erred in refusing to allow the district attorney of San Diego to answer several questions. The latter testified that he had been consulted in his official capacity by the defendant, that the latter made a statement of the facts and upon them he advised him