[251]*251' Statement.
Bronson, Oh. J.
This is an action to recover damages for malicious prosecution. The jury returned a verdict for $500 in plaintiff's favor. From the judgment entered thereupon, and from an order denying judgment non obstante, or, in the alternative, for a new trial, defendants have appealed. The facts arc: — Plaintiff was cashier of defendant bank at Forbes, North Dakota, from February, 1917, to about January 1st, 1920. As such, he managed the bank and conducted in connection with the bank a sort of real estate, insurance and loan business out of which he received commissions in addition to his salary. In this business he used his own automobile under an oral agreement with the directors, as he claims, that the bank should pay its running expenses. In the fall of 1919 plaintiff sold his stock in the bank and tendered his resignation effective January 5th, 1920. On December 8th, 1919, plaintiff made to himself an expense check for $750.86 with the notation, “for car expense for three years, less $150 drawn out.” On December 31st, 1919, he credited the amount of this check to his own account in this bank. As defendants claim in the testimony, this [252]*252was clone without any bill being presented, to the board of directors, without their knowledge or consent, and after the examining committee of the board of directors had adjourned. Plaintiff, in his testimony, admitted making a mistake of $100 in this expense account and other minor mistakes in calculations. After severing his connections with the bank, plaintiff went to his former home in Mapleton, Minnesota, with the knowledge of defendant’s officers. He left in the bank a checking account, and with the bank, certain promissory notes belonging to his father. He took with him certain certificates of deposit issued by the bank to him. He then was the owner of certain real property in Dickey county, North Dakota. In March and October, 1920, plaintiff visited Forbes on business matters, called at the bank and talked with the officers of the bank. Again, in May, 1921, plaintiff visited Forbes and talked with officers of the bank. It appears that the directors began to investigate the actions of plaintiff as cashier. A^ stockholders and directors mootings in July, 1921, action was taken to continue such investigations. Certain notes which plaintiff had discounted were questioned. In correspondence had, plaintiff denied any liability thereon. During this year, plaintiff was sued by the bank to recover for bank funds claimed to have been wrongfully appropriated in subscribing to stock in a certain electric-light company. This action reached this court and was determined adversely to the bank’s contentions. See Farmers State Bank v. Richter, 48 N. D. 1233, 189 N. W. 242. Later, it appears that the bank officers and directors determined that the facts disclosed warranted proceedings against plaintiff for the embezzlement of the proceeds of the expense check for $180.86. The state’s attorney was consulted. He authorized the issuance of a criminal complaint charging the plaintiff with such embezzlement. Then, the plaintiff was at his home in Mapleton, Minneapolis. Accordingly, 'papers for the extradition of plaintiff were presented to the Governor by defendants’ officers and directors. In these papers, such officers and directors made affidavit to the effect that plaintiff left this state secretly and was a fugitive from justice in Minnesota. Extradition was awarded and plaintiff was thereby returned to this state. Upon the criminal complaint issued, a full preliminary hearing was had in February, 1922, before a police magistrate, who, finding the existence of probable cause, bound the [253]*253defendant over to the district court to answer for the crime alleged. In February, 1922, a demand was served on plaintiff to refund $750.8(5, the amount claimed to have been embezzled, and also other sums aggregating some $8,000. After the preliminary hearing the bank brought action against plaintiff to recover such amounts. Plaintiff was arrested under arrest and bail proceedings. He furnished bail. This action was tried in October, 1922, and a verdict returned in the bank’s favor for $325. In March, 1922, after arraignment and plea of not guilty by this plaintiff, trial of the criminal action was had in the district court. After the state had rested, the then defendant moved the court for an advised verdict of acquittal upon the ground that the evidence was insufficient to establish any embezzlement. A colloquy then took place between counsel and the court. The state asked permission to reopen the case so as to introduce further proof. This motion was granted and an adjournment taken. After the court reconvened, the Slate’s Attorney frankly stated to the general effect that he did not believe a certain fact could be shown; that he did not believe the matter should go to the jury; and that the State moved that the case be dismissed. The court thereupon stated, “the motion of the State will be granted and the action will be dismissed.” The court inquired whether the bondsmen should be exonerated. The State’s Attorney replied that the bondsmen should be exonerated. The then defendant’s counsel stated that defendant, preferred a verdict of acquittal. Then the court inquired whether defendant objected to the motion. His counsel replied that defendant did not object but he would like to have a verdict of acquittal.' Then the court said, — “I feel that the State has acted very fairly in this matter, realizing that they are here to do their public duty and not to prosecute anybody who may be innocent, and the fact that they have voluntarily come in here and asked the court to dismiss the action is an acquittal at the hands of the State and court and the court will make the order that the action be dismissed.” In April, 1922, tliis action was instituted to recover $50,000 damages. Defendants, in separate answers, alleged misappropriation of the expense check for $750.8G; their full and bona fide statement of all the facts to the State’s Attorney and to an attorney; the advise of attorneys and the issuance of the criminal complaint and their action without malice and in good faith to protect the property of the bank. The trial [254]*254extended over a week and has produced a voluminous record. The facts concerning the dismissal of the criminal ease were established by the testimony of the official court reporter and by his transcript of such proceedings. Plaintiff also introduced the minutes of the trial judge, as follows: — “Tried to jury; not guilty.” Plaintiff also sought to introduce the minutes of such proceedings as made by the clerk of court at the trial. The court refused to receive the same in evidence. The court, however, stated that it was apparent from the record and what the clerk said that there was no verdict and that the case was dismissed on the motion of the State’s Attorney; that they would have to consider it in that light. During the course of the trial various newspaper articles concerning the arrest of plaintiff upon the charge of embezzlement were received in evidence. These articles were in the nature of news items. Some were published in newspapers within the state and and some in newspapers in Minnesota. No attempt will be made to state further in extenso the evidence at the trial. At the close of the trial, defendant made a motion to direct the verdict. The trial court denied the motion accompanied with the request that a motion be made thereafter either for judgment non obstante or for a new trial.
Contentions.
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[251]*251' Statement.
Bronson, Oh. J.
This is an action to recover damages for malicious prosecution. The jury returned a verdict for $500 in plaintiff's favor. From the judgment entered thereupon, and from an order denying judgment non obstante, or, in the alternative, for a new trial, defendants have appealed. The facts arc: — Plaintiff was cashier of defendant bank at Forbes, North Dakota, from February, 1917, to about January 1st, 1920. As such, he managed the bank and conducted in connection with the bank a sort of real estate, insurance and loan business out of which he received commissions in addition to his salary. In this business he used his own automobile under an oral agreement with the directors, as he claims, that the bank should pay its running expenses. In the fall of 1919 plaintiff sold his stock in the bank and tendered his resignation effective January 5th, 1920. On December 8th, 1919, plaintiff made to himself an expense check for $750.86 with the notation, “for car expense for three years, less $150 drawn out.” On December 31st, 1919, he credited the amount of this check to his own account in this bank. As defendants claim in the testimony, this [252]*252was clone without any bill being presented, to the board of directors, without their knowledge or consent, and after the examining committee of the board of directors had adjourned. Plaintiff, in his testimony, admitted making a mistake of $100 in this expense account and other minor mistakes in calculations. After severing his connections with the bank, plaintiff went to his former home in Mapleton, Minnesota, with the knowledge of defendant’s officers. He left in the bank a checking account, and with the bank, certain promissory notes belonging to his father. He took with him certain certificates of deposit issued by the bank to him. He then was the owner of certain real property in Dickey county, North Dakota. In March and October, 1920, plaintiff visited Forbes on business matters, called at the bank and talked with the officers of the bank. Again, in May, 1921, plaintiff visited Forbes and talked with officers of the bank. It appears that the directors began to investigate the actions of plaintiff as cashier. A^ stockholders and directors mootings in July, 1921, action was taken to continue such investigations. Certain notes which plaintiff had discounted were questioned. In correspondence had, plaintiff denied any liability thereon. During this year, plaintiff was sued by the bank to recover for bank funds claimed to have been wrongfully appropriated in subscribing to stock in a certain electric-light company. This action reached this court and was determined adversely to the bank’s contentions. See Farmers State Bank v. Richter, 48 N. D. 1233, 189 N. W. 242. Later, it appears that the bank officers and directors determined that the facts disclosed warranted proceedings against plaintiff for the embezzlement of the proceeds of the expense check for $180.86. The state’s attorney was consulted. He authorized the issuance of a criminal complaint charging the plaintiff with such embezzlement. Then, the plaintiff was at his home in Mapleton, Minneapolis. Accordingly, 'papers for the extradition of plaintiff were presented to the Governor by defendants’ officers and directors. In these papers, such officers and directors made affidavit to the effect that plaintiff left this state secretly and was a fugitive from justice in Minnesota. Extradition was awarded and plaintiff was thereby returned to this state. Upon the criminal complaint issued, a full preliminary hearing was had in February, 1922, before a police magistrate, who, finding the existence of probable cause, bound the [253]*253defendant over to the district court to answer for the crime alleged. In February, 1922, a demand was served on plaintiff to refund $750.8(5, the amount claimed to have been embezzled, and also other sums aggregating some $8,000. After the preliminary hearing the bank brought action against plaintiff to recover such amounts. Plaintiff was arrested under arrest and bail proceedings. He furnished bail. This action was tried in October, 1922, and a verdict returned in the bank’s favor for $325. In March, 1922, after arraignment and plea of not guilty by this plaintiff, trial of the criminal action was had in the district court. After the state had rested, the then defendant moved the court for an advised verdict of acquittal upon the ground that the evidence was insufficient to establish any embezzlement. A colloquy then took place between counsel and the court. The state asked permission to reopen the case so as to introduce further proof. This motion was granted and an adjournment taken. After the court reconvened, the Slate’s Attorney frankly stated to the general effect that he did not believe a certain fact could be shown; that he did not believe the matter should go to the jury; and that the State moved that the case be dismissed. The court thereupon stated, “the motion of the State will be granted and the action will be dismissed.” The court inquired whether the bondsmen should be exonerated. The State’s Attorney replied that the bondsmen should be exonerated. The then defendant’s counsel stated that defendant, preferred a verdict of acquittal. Then the court inquired whether defendant objected to the motion. His counsel replied that defendant did not object but he would like to have a verdict of acquittal.' Then the court said, — “I feel that the State has acted very fairly in this matter, realizing that they are here to do their public duty and not to prosecute anybody who may be innocent, and the fact that they have voluntarily come in here and asked the court to dismiss the action is an acquittal at the hands of the State and court and the court will make the order that the action be dismissed.” In April, 1922, tliis action was instituted to recover $50,000 damages. Defendants, in separate answers, alleged misappropriation of the expense check for $750.8G; their full and bona fide statement of all the facts to the State’s Attorney and to an attorney; the advise of attorneys and the issuance of the criminal complaint and their action without malice and in good faith to protect the property of the bank. The trial [254]*254extended over a week and has produced a voluminous record. The facts concerning the dismissal of the criminal ease were established by the testimony of the official court reporter and by his transcript of such proceedings. Plaintiff also introduced the minutes of the trial judge, as follows: — “Tried to jury; not guilty.” Plaintiff also sought to introduce the minutes of such proceedings as made by the clerk of court at the trial. The court refused to receive the same in evidence. The court, however, stated that it was apparent from the record and what the clerk said that there was no verdict and that the case was dismissed on the motion of the State’s Attorney; that they would have to consider it in that light. During the course of the trial various newspaper articles concerning the arrest of plaintiff upon the charge of embezzlement were received in evidence. These articles were in the nature of news items. Some were published in newspapers within the state and and some in newspapers in Minnesota. No attempt will be made to state further in extenso the evidence at the trial. At the close of the trial, defendant made a motion to direct the verdict. The trial court denied the motion accompanied with the request that a motion be made thereafter either for judgment non obstante or for a new trial.
Contentions.
Defendant’s specifications of error are many covering introduction of evidence, instructions of the court and questions of law upon the sufficiency of the evidence.
Principally, defendant maintains that the proof fails to establish the termination of the criminal prosecution and the discharge of the accused ; that no order in writing was ever made by the court dismissing the criminal action and exonerating defendant’s bail; that the stenographer’s transcript simply establishes a motion to dismiss and a promise of the court to make an order of dismissal; that it was incumbent upon the plaintiff to prove by record evidence the termination of the criminal proceedings; that the evidence affirmatively establishes the existence of probable cause through a preliminary hearing whereby defendant was bound over to the district court; that the evidence is wholly insufficient to overcome the prima facie presumption thereby established. Further, that the evidence discloses that the plaintiff [255]*255was guilty of embezzlement; that the evidence fails to disclose in any particular a failure to disclose all of the facts to the State’s Attorney, fairly and bona fide before the issuance of the criminal complaint; that, furthermore, there is no evidence in the record to establish any malice or evidence upon which malice might be inferred; that the trial court prejudicially erred in receiving in evidence the newspaper articles.
Decision.
The trial court instructed the jury to the effect that, if they found the criminal prosecution against plaintiff was dismissed by the district court on the motion of the state’s attorney, that would amount to a termination of the criminal prosecution as a matter of law. This instruction was not unfavorable to defendant. The evidence is ample to support, in this respect, the finding of the jury. It was necessary for plaintiff to establish that there was a prosecution. It was essential for him to show that this prosecution was not pending and had not terminated adversely to him in order to avoid any conclusive presumption of probable cause therefor. See Root v. Rose, 6 N. D. 575, 580, 72 N. W. 1022; 26 Cyc. 42; 18 R. C. L. 27. There can be little question upon tli is record that the criminal prosecution involved was ended. Dpon investigation of the record in this case we are of the opinion that the evidence is sufficient to warrant the finding of the jury that there Avas want of probable cause in instituting the criminal proceeding. We are clearly of the opinion that upon this record it may not be said that plaintiff was guilty of embezzlement as a matter of laAv. The question of whether plaintiff, pursuant to agreement Avith defendant’s officers and directors, had the right to make a charge for his automobile expenses and to make withdraAvals out of bank funds for that purpose Avas for the jury. The evidence is sufficient to warrant the jury in finding in plaintiff’s favor so as to overcome the prima facie presumption of probable cause that existed through the preliminary hearing. See Shong v. Stinchfield, 47 N. D. 495, 183 N. W. 268. We are further of the opinion that the question Avhether defendants fully and fairly disclosed all facts Avithin their knowledge to the State’s Attorney or to an attorney concerning the criminal charge was for the jury as Avell as the question of malice which, under the circum[256]*256stances, might be inferred by the jury from want of probable cause. Ibid. No prejudicial error was committed by the trial court in receiving into evidence newspaper articles. Their purpose in admission and in instruction concerned the question of damages. The verdict returned is certainly not excessive. Defendants’ contentions concerning the instructions are of no avail when their principal contentions arc; rejected. We find no error in the instructions. The judgment and order are affirmed with costs.
Christianson, Birdzerr, Nuessre, and Johnson, JJ., concur.