[300]*300OPINION
COOPER, Justice.
This is an action for damages for malicious prosecution. The action was brought by Cheryl Lewis against Ernest W. Williams and his employer, Commerce Union Bank. The underlying criminal prosecution involved the arrest of Miss Lewis on a warrant charging her with “forgery and/or passing forged papers.” The warrant was issued at the request and upon the sworn testimony of Mr. Williams in his capacity as an investigator for the bank. Before a preliminary hearing was held, the charge against Miss Lewis was dismissed on motion of the state made at the request of employees of the bank. Miss Lewis then filed her action for damages, with the result that the jury awarded her compensatory damages of $5,000.00 and $20,000.00 as punitive damages. The trial court entered a judgment based on the jury’s verdict.
The Court of Appeals affirmed the judgment, holding that the law in Tennessee is that the existence or lack of existence of probable cause in a malicious prosecution action is a question of fact for the jury where there is a conflict of evidence on the issue. In so ruling the court characterized as dictum the holding of this court in Cohen v. Cook, 224 Tenn. 729, 462 S.W.2d 499 (1970), that in an action for malicious prosecution, the existence or lack of existence of probable cause is a question of law for the court and that it is error to submit this issue to the jury.
We granted defendants’ application for permission to appeal to reiterate the statement of principle set forth in Cohen v. Cook, supra, and to determine whether the submission of the issue of probable cause to the jury without qualifying instructions, being error, was prejudicial error requiring a reversal of the judgment. The resolution of the latter issue is dependent on whether the evidence germane to the issue of probable cause was disputed and, if not, whether the evidence established an absence of probable cause. We are also faced with the question of whether there is material evidence to support the jury’s finding of malice.1
Cohen was a malicious prosecution case in which the issue of probable cause was presented to the jury. The Court of Appeals approved this action. See Cohen v. Cook, 62 Tenn.App. 292, 462 S.W.2d 502. The petition for certiorari to the Court of Appeals was denied initially; however, on receiving a petition to rehear, certiorari was granted to consider whether or not the trial judge erred in permitting the jury to determine the issue of probable cause. The court concluded that it was error, but pointed out that the error had been waived by the defendant’s failure to raise the issue in its motion for new trial and affirmed the judgment entered in the Court of Appeals.
On the issue of probable cause, the court had the following to say:
In a malicious prosecution action the determination from the evidence of the existence or lack of existence of probable cause is a question of law for the court and it is error to submit this issue to the jury. In cases where the evidence upon which this issue is to be determined is admitted or undisputed and only one inference can be drawn therefrom the matter presents no great difficulty for the trial judge. In cases where the evidence on this issue is conflicting, such does present to the trial judge a difficult duty as it involves instructing juries on a mixed question of law and fact; but difficult or not, where the evidence is conflicting on this issue it still remains the province of the trial judge as a matter of law to determine the existence or lack of existence of probable cause.
Where the evidence determining the existence or lack of existence of probable cause is conflicting, there are two methods open to the trial judge. First, the trial judge can submit special questions to the jury requiring the jury to determine whether certain facts are or are not established by the evidence, and then based upon this determination made by the jury [301]*301the trial judge, as a matter of law, determines the existence or lack of existence of probable cause. Secondly, the trial judge can state hypothetically the facts relied upon by both the plaintiff and defendant on the issue of probable cause, instructing the jury if it finds the facts relied upon by the plaintiff to be established by the evidence, then as a matter of law there was a lack of probable cause for the prosecution of the action upon which the malicious prosecution action is founded; but if it finds the facts relied upon by the defendant established by the evidence then as a matter of law there was probable cause for the prosecution of the action upon which the malicious prosecution action is founded.
462 S.W.2d at 500.
The genesis of this rule is in the early Tennessee cases of Kelton v. Bevis, 3 Tenn. 90 (1812) and Memphis Gayoso Gas Co. v. Williamson, 56 Tenn. 314 (1872). Together, the holdings in these cases are encompassed in the principles set forth in the Cohen case as decided by this court. A long line of cases since Memphis Gayoso has approved this rule, more commonly using language such as that cited in Klein v. Elliott, 59 Tenn.App. 1, 436 S.W.2d 867 (1968):
The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to show it are true and existed is a question of fact for the jury. Whether the facts found to be true constitute probable cause is a question of law for the court.
See also Landers v. Kroger, 539 S.W.2d 130 (Tenn.App.1976); Mullins v. Wells, 60 Tenn. App. 675, 450 S.W. 599 (1969): Lawson v. Wilkinson, 60 Tenn.App. 406, 447 S.W.2d 369 (1969); Bankhead v. Hall, 34 Tenn.App. 412, 238 S.W.2d 522 (1951); Nashville Union Stockyards, Inc. v. Grissim, 13 Tenn.App. 115 (1930); Restatement Torts 2d § 673 (1977); W. L. Prosser, The Law of Torts 846-47 (4th ed.1971); W. L. Prosser & J. W. Wade, Cases and Materials on Torts, 982-83 (5th ed.1971).
In this case the circumstances leading to the prosecution of Miss Lewis were solely within the knowledge of the employees of the bank. Consequently, the evidence on the issue of probable cause was not disputed and, we think, clearly shows a lack of probable cause for the prosecution of Miss Lewis on a charge of “forgery and/or passing forged papers.”
The incident that lead to the prosecution occurred on March 29, 1977. Commerce Union Bank cashed a check in the amount of $232.00 drawn on the account of Corroon and Black, Armistead Miller Wallace of Tennessee, Inc., payable to Claudia J. White. Payment of the check was approved by a bank officer, who noted the payee’s driver’s license number on the back of the check.
Sometime in April, 1977, the bank received notice from Corroon and Black that the check was a forgery. Mr. Williams took an affidavit to this effect from an employee of Corroon and Black and then set about to discover who had passed the check.
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[300]*300OPINION
COOPER, Justice.
This is an action for damages for malicious prosecution. The action was brought by Cheryl Lewis against Ernest W. Williams and his employer, Commerce Union Bank. The underlying criminal prosecution involved the arrest of Miss Lewis on a warrant charging her with “forgery and/or passing forged papers.” The warrant was issued at the request and upon the sworn testimony of Mr. Williams in his capacity as an investigator for the bank. Before a preliminary hearing was held, the charge against Miss Lewis was dismissed on motion of the state made at the request of employees of the bank. Miss Lewis then filed her action for damages, with the result that the jury awarded her compensatory damages of $5,000.00 and $20,000.00 as punitive damages. The trial court entered a judgment based on the jury’s verdict.
The Court of Appeals affirmed the judgment, holding that the law in Tennessee is that the existence or lack of existence of probable cause in a malicious prosecution action is a question of fact for the jury where there is a conflict of evidence on the issue. In so ruling the court characterized as dictum the holding of this court in Cohen v. Cook, 224 Tenn. 729, 462 S.W.2d 499 (1970), that in an action for malicious prosecution, the existence or lack of existence of probable cause is a question of law for the court and that it is error to submit this issue to the jury.
We granted defendants’ application for permission to appeal to reiterate the statement of principle set forth in Cohen v. Cook, supra, and to determine whether the submission of the issue of probable cause to the jury without qualifying instructions, being error, was prejudicial error requiring a reversal of the judgment. The resolution of the latter issue is dependent on whether the evidence germane to the issue of probable cause was disputed and, if not, whether the evidence established an absence of probable cause. We are also faced with the question of whether there is material evidence to support the jury’s finding of malice.1
Cohen was a malicious prosecution case in which the issue of probable cause was presented to the jury. The Court of Appeals approved this action. See Cohen v. Cook, 62 Tenn.App. 292, 462 S.W.2d 502. The petition for certiorari to the Court of Appeals was denied initially; however, on receiving a petition to rehear, certiorari was granted to consider whether or not the trial judge erred in permitting the jury to determine the issue of probable cause. The court concluded that it was error, but pointed out that the error had been waived by the defendant’s failure to raise the issue in its motion for new trial and affirmed the judgment entered in the Court of Appeals.
On the issue of probable cause, the court had the following to say:
In a malicious prosecution action the determination from the evidence of the existence or lack of existence of probable cause is a question of law for the court and it is error to submit this issue to the jury. In cases where the evidence upon which this issue is to be determined is admitted or undisputed and only one inference can be drawn therefrom the matter presents no great difficulty for the trial judge. In cases where the evidence on this issue is conflicting, such does present to the trial judge a difficult duty as it involves instructing juries on a mixed question of law and fact; but difficult or not, where the evidence is conflicting on this issue it still remains the province of the trial judge as a matter of law to determine the existence or lack of existence of probable cause.
Where the evidence determining the existence or lack of existence of probable cause is conflicting, there are two methods open to the trial judge. First, the trial judge can submit special questions to the jury requiring the jury to determine whether certain facts are or are not established by the evidence, and then based upon this determination made by the jury [301]*301the trial judge, as a matter of law, determines the existence or lack of existence of probable cause. Secondly, the trial judge can state hypothetically the facts relied upon by both the plaintiff and defendant on the issue of probable cause, instructing the jury if it finds the facts relied upon by the plaintiff to be established by the evidence, then as a matter of law there was a lack of probable cause for the prosecution of the action upon which the malicious prosecution action is founded; but if it finds the facts relied upon by the defendant established by the evidence then as a matter of law there was probable cause for the prosecution of the action upon which the malicious prosecution action is founded.
462 S.W.2d at 500.
The genesis of this rule is in the early Tennessee cases of Kelton v. Bevis, 3 Tenn. 90 (1812) and Memphis Gayoso Gas Co. v. Williamson, 56 Tenn. 314 (1872). Together, the holdings in these cases are encompassed in the principles set forth in the Cohen case as decided by this court. A long line of cases since Memphis Gayoso has approved this rule, more commonly using language such as that cited in Klein v. Elliott, 59 Tenn.App. 1, 436 S.W.2d 867 (1968):
The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to show it are true and existed is a question of fact for the jury. Whether the facts found to be true constitute probable cause is a question of law for the court.
See also Landers v. Kroger, 539 S.W.2d 130 (Tenn.App.1976); Mullins v. Wells, 60 Tenn. App. 675, 450 S.W. 599 (1969): Lawson v. Wilkinson, 60 Tenn.App. 406, 447 S.W.2d 369 (1969); Bankhead v. Hall, 34 Tenn.App. 412, 238 S.W.2d 522 (1951); Nashville Union Stockyards, Inc. v. Grissim, 13 Tenn.App. 115 (1930); Restatement Torts 2d § 673 (1977); W. L. Prosser, The Law of Torts 846-47 (4th ed.1971); W. L. Prosser & J. W. Wade, Cases and Materials on Torts, 982-83 (5th ed.1971).
In this case the circumstances leading to the prosecution of Miss Lewis were solely within the knowledge of the employees of the bank. Consequently, the evidence on the issue of probable cause was not disputed and, we think, clearly shows a lack of probable cause for the prosecution of Miss Lewis on a charge of “forgery and/or passing forged papers.”
The incident that lead to the prosecution occurred on March 29, 1977. Commerce Union Bank cashed a check in the amount of $232.00 drawn on the account of Corroon and Black, Armistead Miller Wallace of Tennessee, Inc., payable to Claudia J. White. Payment of the check was approved by a bank officer, who noted the payee’s driver’s license number on the back of the check.
Sometime in April, 1977, the bank received notice from Corroon and Black that the check was a forgery. Mr. Williams took an affidavit to this effect from an employee of Corroon and Black and then set about to discover who had passed the check.
The bank follows the procedure of having the date, time, and code number machine printed on the back of a check at the time it is cashed. On inserting the check in the machine at the teller’s window, a photograph is automatically taken of the person conducting business at the teller’s window. The time of the transaction is imprinted on the photograph. This procedure was followed on the cashing of the check for Claudia J. White on March 29, 1977.
Mr. Williams examined the check and read the time stamp as 2:37 p. m. on March 29, 1977 — the time actually stamped on the check was 12:37 p. m. The photograph was developed of the individual at the proper teller’s window at a time near that shown on the check. The individual shown in the photograph was known to the teller2 and was believed by the teller to be employed at a nearby Quick Check Market. The time shown in the photograph of the person later identified as Miss Lewis was 2:43 p. m. Without making any comparisons with other transactions, Mr. Williams discounted the [302]*302discrepancy in the time as “clock error.” Mr. Williams also made no effort to “checkout” the information on the check taken by the bank officer from the driver license presented by the person that cashed the cheek.
Mr. Williams went to the Quick-check Market and talked with Mr. Hughes, who identified the person in the bank photograph as Cheryl Lewis and on request, gave Mr. Williams a W-4 form signed by Miss Lewis. The W-4 form was taken to Mr. Williams’ supervisor for comparison of signatures. The supervisor, who had had some training in handwriting analysis but admittedly was not an expert, expressed the opinion that the signatures were written by the same person.
Mr. Williams then contacted Robert Dodson of the Metropolitan Criminal Investigative Division and informed him that he had a picture of the person who had passed a forged check and that he had identified the person as Cheryl Lewis. Mr. Williams did not then swear out a warrant for Miss Lewis, but waited until the following Saturday to do so so that Miss Lewis could be detained over the weekend for questioning “about what they supposed to be a ring of forgers running around at that time.”
Miss Lewis was arrested at her place of employment on Saturday afternoon, April 29, 1977, and was taken in a police car to headquarters where she was fingerprinted and photographed. Despite the request by Officer Dodson and bank investigators that Miss Lewis be held in custody over the weekend for questioning, she was permitted to make bond.
On Miss Lewis’ appearance in the general sessions court, the hearing of the charges against her was passed as her attorney was out of the city. Mr. Williams and Mr. Dodson sought permission from substitute counsel to question Miss Lewis, indicating that if she were cooperative they would speak to the District Attorney General in her behalf. This request was denied.
According to Mr. Williams, the lack of cooperation on Miss Lewis’ part made him apprehensive about the case he had worked up against her. The next morning, he reexamined the forged check, found the correct time of the check-cashing transaction to be 12:37 p. m., and that the photograph of the transaction clearly showed that Miss Lewis was not involved. Mr. Williams then called upon the District Attorney General’s office to move to have the charge against Miss Lewis dismissed.
In Thompson v. Schulz, 34 Tenn.App. 488, 240 S.W.2d 252 (1949), it is pointed out that:
Definitions of probable cause, however differently expressed, all agree in these two essentials: (1) The prosecutor must in good faith have honestly believed the accused was guilty of the crime charged; and (2) his belief must have been reasonable — based on facts and circumstances sufficient to lead an ordinarily prudent person to believe the accused was guilty of the crime charged. The prosecutor must have made the investigation an ordinarily prudent person would have made in the circumstances.
The key to the bank’s investigation of the check-cashing incident was the time the check was cashed. Mr. Williams admittedly misread the time stamped on the check. Even so, the photograph of Miss Lewis taken while she was at the teller’s window bore the time of 2:43 p. m., not 2:37 p. m. Despite this discrepancy, and despite the fact that the time of the incident was the key, Mr. Williams made no effort to resolve the time difference. A check either of the accuracy of the bank clock by reference to other transactions on March 29, 1977, or a reexamination of the time stamped on the back of the forged check would have revealed that Miss Lewis could not have been involved in the passing of the forged instrument. In short, the very facts that led Mr. Williams voluntarily to have the charge against Miss Lewis dismissed were in his possession at all times — all he had to do was to check them. An investigator can not close his eyes to the truth of matters within his actual possession and then justify the bringing of a criminal action on the basis he did not know the truth.
[303]*303Appellants insist the evidence shows they acted without malice in instituting the prosecution of Miss Lewis, and that the submission of the issue of malice to the jury was error. Appellants also insist there is no credible evidence to support an award of punitive damages against them. We see no merit in either insistence. It is settled law that malice may be inferred from the fact that a criminal prosecution was brought without probable cause. Mullins v. Wells, 60 Tenn.App. 675, 450 S.W.2d 599 (1970); Abbott v. Ledbetter, 1 Tenn.App. 458 (1925). See also 54 C.J.S. Malicious Prosecution § 43 (1948). The inference is not one of law but is a presumption of fact which may be rebutted, thus making malice an issue to be decided by the jury where a criminal prosecution is instituted without probable cause. See Mullins v. Wells, supra. In this case there is not only the inference of malice from the lack of probable cause, but there is evidence from which the jury could conclude that Mr. Williams acted in reckless disregard of the rights of Miss Lewis. He recognized the discrepancy between the time shown on the picture of Miss Lewis at the teller’s window and the time stamped on the back of the check as he read it. He made no effort to resolve it, but attributed it out-of-hand to “clock error.” This put him in the position of instituting the prosecution of Miss Lewis when he had in his possession evidence that clearly exonerated her. Under these circumstances, we feel that the issues of malice and punitive damages were issues for the jury, and that the evidence supports the jury’s verdict for the plaintiff on both issues.
Judgment affirmed. Costs incident to the appeal are adjudged against the appellants and the surety. The cause is remanded for enforcement of the judgment.
BROCK, C. J., and FONES and HARBI-SON, JJ., concur.
DROWOTA, J., dissents.