Opinion by
Mr. Chief Justice McBride.
1. The court erred in leaving the construction of the criminal complaint to the jury. It would have been a good complaint under Section 1979, L. O. L. which makes the offense of willfully breaking the glass in a building not his own a misdemeanor.
2. It is true that the complaint uses “of,” while the statute uses “in”; but in the connection here used the words are synonymous: Ivey v. State, 112 Ga. 175 (37 S. E. 398); Queen v. Toke, 8 Ad. & E. 227; Lachaise v. Marks, 4 E. D. Smith (N. Y.), 610. It is dividing a hair “betwixt the south and southwest side” to say that the complaint might apply to a glass door or window which had been taken off its hinges and removed from the building. The plain intent and meaning of the complaint was to charge the defendant with breaking the glass in a door then in place in the house, and not in one separate from it.
3. The criminal complaint also uses the words “wrongfully, unlawfully, and maliciously,” instead of the words “willfully” or “wantonly,” used in the statute; but the code defines “malice” to be a “wish to vex, annoy, or injure another person.” It is a broader term than “willfully,” and necessarily includes it. It was a good complaint under Section 1979, L. O. L., and would have been subject to general demurrer under Section 1969. The court should have construed it and instructed the jury as to its legal effect.
4. The instruction as to the inference that might be drawn from evidence showing want of probable cause was misleading and therefore erroneous. While it is true that malice may be inferred from want of probable cause, it is not a necessary inference and is never [217]*217an inference of law. Want of probable cause is a fact to be considered by the jury with other facts in determining the presence or absence of malice: Gee v. Culver, 12 Or. 228 (6 Pac. 775).
5. It is error for the court to single out a certain fact or circumstance and instruct the jury as to the legal inference to be deduced from that particular fact to the exclusion of other facts: Stanley v. Smith, 15 Or. 505 (16 Pac. 174); State v. Pomeroy, 30 Or. 16 (46 Pac. 797); Patterson v. Hayden, 17 Or. 238 (21 Pac. 129, 11 Am. St. Rep. 822, 3 L. R. A. 529); Heldt v. Webster, 60 Tex. 207; Biering v. Bank, 69 Tex. 599 (7 S. W. 90). The case last cited was similar to the case at bar. The court observes:
“If there was no evidence upon the question of malice, and the want of probable cause was satisfactorily proven, the jury might, from that alone, infer malice and so find, and their verdict would not be disturbed; but we do not believe the court would be authorized to charge the jury that ‘they may infer malice from want of probable cause.’"
How a verdict for plaintiff was arrived at in the case at bar is a mystery. Not only was there no evidence to negative want of probable cause, but the evidence seems clear and convincing that, from statements made to defendant by reliable and impartial persons, he or any reasonable man would have had ample cause to believe the plaintiff guilty of the offense charged against him.
The judgment is reversed and a new trial ordered.
Reversed.
Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur. Free access — add to your briefcase to read the full text and ask questions with AI