Hanky, J.
On May 31, 1895, the plaintiff, with her husband and children, occupied a quarter section of land in Burke township, Minnehaha county. Defendant Huston, who has not been served with process in this action, was deputy sheriff. Defendants Berdahl, Dybedahl, and Blow, the appellants, were supervisors of Burke township. On that day the road overseer of that township, appellants, and several other persons came to the northeast corner of plaintiff’s inclosed field and threatened to open and work an alleged [130]*130highway across the north side of such field. On the following day these parties returned, when the overseer cut plaintiff’s fence and proceeded to open the alleged highway, as previously" threatened. There is evidence tending to show that the plaintiff, with others, actively opposed and interféred with the overseer in his efforts to open the alleged highway. During the altercation plaintiff was arrested by the deputy sheriff without a warrant. Subsequently she was taken to Sioux Falls, retained in custody two days, and released, without any legal proceedings having been instituted. Thereafter this action was commenced, resulting in a judgment for the plaintiff. A motion for a new trial having been denied, the supervisors appealed.
It is the theory of the plaintiff that her arrest was illegal, or, if not illegal in the beginning, it became so by reason of her unlawful detention, and that appellants are liable because they directed the conduct of the deputy sheriff. Appellants deny that they directed or influenced the conduct of the deputy sheriff; contend that the plaintiff committed a crime in the presence of that officer; that there was probable cause for her arrest, and that she requested to be taken to Sioux Falls, in place of being immediately taken before a justice of the peace in her own township. Hence the law applicable to cases of malicious prosecution is involved, as well as the law applicable to cases of false imprisonment.
Was the arrest illegal? Whenever any public highway becomes obstructed or unsafe from any cause, the road overseer has power, and it is his duty, to call upon any and all persons liable to poll tax in his district to come forth with such tools or teams as the overseer may direct, and work upon such highway, in removing obstructions or repairing dangerous places; and any road overseer who fails to perform this duty is subject to a criminal prosecution. [131]*131Comp. Raws, § 1277. Every person who willfully delays or obstructs any public officer in the discharge of, or attempt to discharge, any duty of his office, is guilty of a misdemeanor. Id. § 6381. A peace officer may, without a warrant, arrest a person for a public offense committed or attempted in his presence. Id. § 7148. • Hence, if any highway had become obstructed by the Richardson fence, it was the road overseer’s duty to remove, or cause the removal of, such obstruction ; and if the plaintiff, in the presence of the deputy sheriff, intentionally delayed or obstructed the overseer in the discharge df this duty, she was guilty of a public offense, for which the deputy sheriff was authorized to arrest her without a warrant. The overseer's power did not extend beyond the removal of obstructions from the highway; it was not his duty to enter upon any one’s private property; and, if this were an action against him to recover damages for trespass on the Richardson farm, he would be liable, unless it should appear that his operations were confined to the limits of a legally established and existing public highway. As a representative of the public, the overseer was entitled to the possession of the the entire highway, and to nothing more. But any questions as to the legality and location of the highway from which this overseer claimed the right to remove the Richardson fence are merely incidental to the principal issue in this action. That issue is not whether the plaintiff in fact committed a public offense in the presence of a peace officer, nor whether the overseer was in fact guilty of trespass, nor whether any highway had in fact ever been established or opened. The real issue is whether, if either of the appellants procured the plaintiff’s arrest, there was probable cause for so doing. Reasonable or probable cause is defined to be such a state of facts in the mind of a-prosecutor as would lead a person of ordinary caution and prudence to beliéve or entertain an honest and strong sus[132]*132picion.that the person is guilty. It does not depend upon the actual state of the case in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution. Newell, Mal. Pros. 252. If either of the appellants directed the deputy sheriff to make the arrest, his sutuation is substantially the same as if he had instituted proceedings charging the plaintiff with the offense of delaying or obstructing a public officer in the discharge of his duty, and the proceedings had been subsequently abandoned. The arrest of the plaintiff without a warrant was an initiation of a criminal proceeding sanctioned by the statute, and no one responsible therefor can be held liable in this action unless there was want of probable cause for commencing such proceedings. The want of probable cause is essential to every suit for a malicious prosecution. Both that and malice must concur. Malice, it is admitted, may be inferred by the jury from a want of probable cause, but the want of probable cause cannot be inferred from any degree of express malice. Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116. As heretofore stated, there was evidence tending to prove that the plaintiff had intentionally delayed and obstructed the overseer in his efforts to remove the plaintiff’s fence. Were the facts, as they appeared to these appellants, such as would lead a person of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the Richardson fence was an unlawful obstruction to any portion of a legally established and existing public highway? This was the important inquiry upon the branch of the case now under consideration. This was the mixed question of law and fact to be determined by the jury under the direction of the court. Jackson v. Bell, 5 S. D. 257, 58 N. W. 671. Its determination did not depend upon what the overseer knew and believed, but upon what the appellants knew and believed, regarding the location of the fence in relation to' any existing public [133]*133highway. For any tribunal to determine this question intelligently, it is necessary to ascertain what facts were known and what facts should have been known to the appellants when the arrest was made. It was, therefore, proper to introduce the proceedings of the county commissioners relating to the establishment of the alleged highway; to introduce evidence tending to show the actual position on the earth’s surface of such highway, and the conduct of the public and adjacent owners with respect thereto; to introduce evidence showing what inquiries had been made and what advice had been taken by the appellants regarding the legality and location of the highway; and from all the facts and circumstances, as shown by the evidence, it was for the jury to determine, under proper instructions, not whether there was a legal highway, within the limits of which the overseer was engaged in removing an obstruction, but whether these appellants honestly believed, and had reason to believe, that such was the fact — in other words, whether there was probable cause for instituting criminal proceedings against the plaintiff.
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Hanky, J.
On May 31, 1895, the plaintiff, with her husband and children, occupied a quarter section of land in Burke township, Minnehaha county. Defendant Huston, who has not been served with process in this action, was deputy sheriff. Defendants Berdahl, Dybedahl, and Blow, the appellants, were supervisors of Burke township. On that day the road overseer of that township, appellants, and several other persons came to the northeast corner of plaintiff’s inclosed field and threatened to open and work an alleged [130]*130highway across the north side of such field. On the following day these parties returned, when the overseer cut plaintiff’s fence and proceeded to open the alleged highway, as previously" threatened. There is evidence tending to show that the plaintiff, with others, actively opposed and interféred with the overseer in his efforts to open the alleged highway. During the altercation plaintiff was arrested by the deputy sheriff without a warrant. Subsequently she was taken to Sioux Falls, retained in custody two days, and released, without any legal proceedings having been instituted. Thereafter this action was commenced, resulting in a judgment for the plaintiff. A motion for a new trial having been denied, the supervisors appealed.
It is the theory of the plaintiff that her arrest was illegal, or, if not illegal in the beginning, it became so by reason of her unlawful detention, and that appellants are liable because they directed the conduct of the deputy sheriff. Appellants deny that they directed or influenced the conduct of the deputy sheriff; contend that the plaintiff committed a crime in the presence of that officer; that there was probable cause for her arrest, and that she requested to be taken to Sioux Falls, in place of being immediately taken before a justice of the peace in her own township. Hence the law applicable to cases of malicious prosecution is involved, as well as the law applicable to cases of false imprisonment.
Was the arrest illegal? Whenever any public highway becomes obstructed or unsafe from any cause, the road overseer has power, and it is his duty, to call upon any and all persons liable to poll tax in his district to come forth with such tools or teams as the overseer may direct, and work upon such highway, in removing obstructions or repairing dangerous places; and any road overseer who fails to perform this duty is subject to a criminal prosecution. [131]*131Comp. Raws, § 1277. Every person who willfully delays or obstructs any public officer in the discharge of, or attempt to discharge, any duty of his office, is guilty of a misdemeanor. Id. § 6381. A peace officer may, without a warrant, arrest a person for a public offense committed or attempted in his presence. Id. § 7148. • Hence, if any highway had become obstructed by the Richardson fence, it was the road overseer’s duty to remove, or cause the removal of, such obstruction ; and if the plaintiff, in the presence of the deputy sheriff, intentionally delayed or obstructed the overseer in the discharge df this duty, she was guilty of a public offense, for which the deputy sheriff was authorized to arrest her without a warrant. The overseer's power did not extend beyond the removal of obstructions from the highway; it was not his duty to enter upon any one’s private property; and, if this were an action against him to recover damages for trespass on the Richardson farm, he would be liable, unless it should appear that his operations were confined to the limits of a legally established and existing public highway. As a representative of the public, the overseer was entitled to the possession of the the entire highway, and to nothing more. But any questions as to the legality and location of the highway from which this overseer claimed the right to remove the Richardson fence are merely incidental to the principal issue in this action. That issue is not whether the plaintiff in fact committed a public offense in the presence of a peace officer, nor whether the overseer was in fact guilty of trespass, nor whether any highway had in fact ever been established or opened. The real issue is whether, if either of the appellants procured the plaintiff’s arrest, there was probable cause for so doing. Reasonable or probable cause is defined to be such a state of facts in the mind of a-prosecutor as would lead a person of ordinary caution and prudence to beliéve or entertain an honest and strong sus[132]*132picion.that the person is guilty. It does not depend upon the actual state of the case in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution. Newell, Mal. Pros. 252. If either of the appellants directed the deputy sheriff to make the arrest, his sutuation is substantially the same as if he had instituted proceedings charging the plaintiff with the offense of delaying or obstructing a public officer in the discharge of his duty, and the proceedings had been subsequently abandoned. The arrest of the plaintiff without a warrant was an initiation of a criminal proceeding sanctioned by the statute, and no one responsible therefor can be held liable in this action unless there was want of probable cause for commencing such proceedings. The want of probable cause is essential to every suit for a malicious prosecution. Both that and malice must concur. Malice, it is admitted, may be inferred by the jury from a want of probable cause, but the want of probable cause cannot be inferred from any degree of express malice. Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116. As heretofore stated, there was evidence tending to prove that the plaintiff had intentionally delayed and obstructed the overseer in his efforts to remove the plaintiff’s fence. Were the facts, as they appeared to these appellants, such as would lead a person of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the Richardson fence was an unlawful obstruction to any portion of a legally established and existing public highway? This was the important inquiry upon the branch of the case now under consideration. This was the mixed question of law and fact to be determined by the jury under the direction of the court. Jackson v. Bell, 5 S. D. 257, 58 N. W. 671. Its determination did not depend upon what the overseer knew and believed, but upon what the appellants knew and believed, regarding the location of the fence in relation to' any existing public [133]*133highway. For any tribunal to determine this question intelligently, it is necessary to ascertain what facts were known and what facts should have been known to the appellants when the arrest was made. It was, therefore, proper to introduce the proceedings of the county commissioners relating to the establishment of the alleged highway; to introduce evidence tending to show the actual position on the earth’s surface of such highway, and the conduct of the public and adjacent owners with respect thereto; to introduce evidence showing what inquiries had been made and what advice had been taken by the appellants regarding the legality and location of the highway; and from all the facts and circumstances, as shown by the evidence, it was for the jury to determine, under proper instructions, not whether there was a legal highway, within the limits of which the overseer was engaged in removing an obstruction, but whether these appellants honestly believed, and had reason to believe, that such was the fact — in other words, whether there was probable cause for instituting criminal proceedings against the plaintiff. Although it may now appear that the plaintiff was not guilty of any offense, for the reason that there was no legally established highway, for the reason that the fence was not an obstruction, for the reason that the plaintiff did not in fact delay or obstruct the overseer in the discharge of his duty, or for any other reason; although it may appear in this action that she was entirely innocent — the appellants cannot be held liable for her arrest unless it appears from the evidence that there was, as to them, a want of probable cause; and the burden is upon the plaintiff to show, by a fair preponderance of the evidence, both want of probable cause and that the prosecution was malicious. Appellants requested the court below to so charge the jury as to the burden of proof. The request was denied, the error was not cured by any portion of the charge given upon the court’s [134]*134own motion, and for this reason the judgment should be reversed, and a new trial ordered.
If appellants did not cause the plaintiff’s arrest, of course, they are not liable, in any view of the case. But, if they did cause her arrest, although there was probable cause for so doing, and the arrest was originally legal, a further issue arises — as to whether the conduct of the deputy sheriff subsequent to the arrest was such as to render him liable, and if so, whether appellants are responsible for such conduct. It was the duty of the deputy sheriff to take the plaintiff before a magistrate without unnecessary delay. Comp. Laws, § 7133. If, however, a person under arrest requests delay, or desires to be taken before some magistrate other than the one nearest and most accessible, and the officer complies with such request, neither he nor one who advises him in so doing can be held liable for false imprisonment. Concerning what was desired by the plaintiff in this respect, there was a direct conflict in the evidence, and the issue thus presented was not submitted to the jury. It was an issue raised by the pleadings, which should have been submitted under proper instructions. Another substantial feature of this controversy, which seems to have received no attention from counsel or court below, is the prcsumtion in favor of the plaintiff arising from the presence of her husband when the alleged crime was committed. It should be considered if the action shall be tried again. Comp. Laws, §§ 6221, 6223; Neys v. Taylor, 12 S. D. 488, 81 N. W. 901. Though the jury should find that the plaintiff was detained in custody an unreasonable time without her consent, of course, neither of the appellants would be liable for such detention, unless it should be proved by a fair preponderance of the evidence that he was responsible for the wrongful conduct of the officer subsequent to the time of the arrest.
[135]*135After this action was decided upon a former appeal, defendants were allowed to amend their answer and plead facts in justification, thus' presenting substantially different issues from those formerly considered by this court. Richardson v. Huston, 10 S. D. 484, 74 N. W. 234. Having endeavored to discuss all the questions likely to hereafter arise in the court below, we reverse its judgment and order a new trial.