ADAMS, Circuit Judge.
This writ of error seeks a review of a judgment of the Circuit Court directing a verdict for the defendant on an inspection of the pleadings by the court. The verdict was directed and judgment entered because in the opinion of the court the complaint failed to state a cause of action.' The action was for malicious prosecution. The complaint alleged in substance and effect that defendant, the San Ruis Valley I,and & Mining Company, mali[222]*222ciously and without any reasonable or probable cause procured the issuance of a warrant by a justice of the peace and caused plaintiff to be arrested thereon on the double charge of stealing certain flasks of quicksilver and purchasing the' same knowing them to have been stolen; that an examination followed by the magistrate, resulting in binding plaintiff over to appear before the district court of Saguache county, Colo., to answer the charge of buying the quicksilver knowing it to have been stolen, and discharging him on the accusation of stealing; that plaintiff appeared before the district court pursuant to the condition of his bond, when the defendant caused two informations to be filed against him charging him with having committed the two specified offenses; that the district court quashed one of the informa-tions, and put the plaintiff to trial before a jury on the other, namely, purchasing the quicksilver ‘ knowing it to have been stolen, and that this trial resulted in his acquittal and discharge; that defendant aft-erwards caused an information to be filed against plaintiff in the district court charging him and two other persons with having committed the same two offenses, and caused their arrest and trial thereon, which resulted in an acquittal and discharge; that defendant afterwards caused another information to be filed against plaintiff and others charging them with having conspired to commit the unlawful act of stealing the quicksilver in question, and caused plaintiff to be arrested and tried thereon, and that he was acquitted and discharged. Each and all of the acts so charged to have been done by defendant are alleged to have been done maliciously and without any reasonable or probable cause whatever.
Two prominent questions are presented by the assignment of errors. They relate to the force and effect to be given to the judgment of the examining magistrate binding plaintiff over for trial, and to the judgment of the district attorney in filing the informations against plaintiff.
Because it appears in the complaint that plaintiff was bound over by the magistrate to answer the charge made against him, and that the district attorney, who under the statutes of Colorado alone determines whether to file an information against one charged with a crime or not, did conclude to file the several informations against plaintiff after he was acquitted of the charges preferred before the magistrate, defendant’s counsel contend that the complaint made a prima facie showing of probable cause for each and all the prosecutions of plaintiff, and that this prima facie showing was not overcome by other averments of the complaint, and as a result that the court committed no error in directing a verdict for the defendant.
It is well settled that the binding over by an examining magistrate constitutes prima facie evidence of probable cause for the prosecution of the accused; but our attention has not been called to any case, neither have we in our investigation found any, except the case of Giusti v. Del Papa, 19 R. I. 338, 33 Atl. 525 (upon which defendant strongly relies), which imputes to the fact of binding over any greater force or effect than that of presumptive or prima facie evidence of probable cause. That case, as first decided, held that the binding over constituted conclusive evidence of probable cause, but on rehearing [223]*223the court nominally receded from that view, but held that a declaration that defendant prosecuted plaintiff maliciously and without probable cause stated no cause of action, provided it appeared in the declaration without any showing of inducing fraud, perjury, or other unfair means that the plaintiff was bound over and afterwards indicted by the grand jury. It is there said:
“The question is one of pleading, and the allegation of facts which are prima facie evidence of probable cause necessarily stands as conclusive until something further is alleged to rebut the presumption arising from that allegation.”
This may be true. But is not the allegation that the defendant prosecuted plaintiff “maliciously and without any reasonable or probable’ cause whatever” such an allegation? It is said in the Giusti Case that “the averment of want of probable cause by itself is not a statement of fact, but only a conclusion of law.” With due deference to the distinguished court which rendered that decision, we find ourselves unable to agree with this statement. It seems to us that an allegation of want of probable cause is an allegation of an ultimate fact, a condensed expression which by practice and established usage is made to signify that defendant did not have a reasonable ground to believe that plaintiff was guilty, based upon facts and circumstances sufficiently strong in themselves to induce such a belief in the mind of an ordinarily prudent person. The Supreme Court of the United States in Stewart v. Sonneborn, 98 U. S. 187, 194, 25 L. Ed. 116, said:
“The question of probable cause is a mixed question of law and of fact. Whether the circumstances alleged to show it probable are true, and existed, is a matter of fact; but whether, supposing them to he true, they amount: to a prohable cause, is a question of law. ⅜ * * It is, therefore, generally the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it: proves, with instructions that the facts found amount to proof of probable cause, or that they do not.”
To the same effect is the case of Mercantile Co. v. Kyes, 9 Colo. App. 190, 48 Pac. 663; Firer v. Lowery, 59 Mo. App. 92.
Whether an accused person be bound over or discharged by an examining magistrate is evidence only tending to prove or disprove the ultimate issuable fact — the existence or nonexistence of probable cause for the prosecution. It is made by law prima facie evidence of such probable cause, but that is only a presumption which is disputable. In other words, a “binding over” is a fact which the jury may consider together with all other pertinent facts disclosed in evidence in determining the issue of probable cause, and in the absence of any other countervailing evidence it is sufficient to establish it; but, like other rebuttable presumptions, it yields to the force and effect of the actual facts when proved. Wabash R. Co. v. De Tar, 73 C. C. A. 166, 141 Fed. 932. 4 L. R. A. (N. S.) 352; Rich v. Chicago, M. & St. P. R. Co., 78 C. C. A. 663, 149 Fed. 79.
Accordingly, we conclude that a complaint which by clear averment. charges that defendant maliciously and without any probable cause whatever caused plaintiff to be prosecuted states a good cause of action, notwithstanding the fact that a recital or averment is found [224]*224in the complaint that in the course of the prosecution plaintiff was bound over by an examining magistrate.
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ADAMS, Circuit Judge.
This writ of error seeks a review of a judgment of the Circuit Court directing a verdict for the defendant on an inspection of the pleadings by the court. The verdict was directed and judgment entered because in the opinion of the court the complaint failed to state a cause of action.' The action was for malicious prosecution. The complaint alleged in substance and effect that defendant, the San Ruis Valley I,and & Mining Company, mali[222]*222ciously and without any reasonable or probable cause procured the issuance of a warrant by a justice of the peace and caused plaintiff to be arrested thereon on the double charge of stealing certain flasks of quicksilver and purchasing the' same knowing them to have been stolen; that an examination followed by the magistrate, resulting in binding plaintiff over to appear before the district court of Saguache county, Colo., to answer the charge of buying the quicksilver knowing it to have been stolen, and discharging him on the accusation of stealing; that plaintiff appeared before the district court pursuant to the condition of his bond, when the defendant caused two informations to be filed against him charging him with having committed the two specified offenses; that the district court quashed one of the informa-tions, and put the plaintiff to trial before a jury on the other, namely, purchasing the quicksilver ‘ knowing it to have been stolen, and that this trial resulted in his acquittal and discharge; that defendant aft-erwards caused an information to be filed against plaintiff in the district court charging him and two other persons with having committed the same two offenses, and caused their arrest and trial thereon, which resulted in an acquittal and discharge; that defendant afterwards caused another information to be filed against plaintiff and others charging them with having conspired to commit the unlawful act of stealing the quicksilver in question, and caused plaintiff to be arrested and tried thereon, and that he was acquitted and discharged. Each and all of the acts so charged to have been done by defendant are alleged to have been done maliciously and without any reasonable or probable cause whatever.
Two prominent questions are presented by the assignment of errors. They relate to the force and effect to be given to the judgment of the examining magistrate binding plaintiff over for trial, and to the judgment of the district attorney in filing the informations against plaintiff.
Because it appears in the complaint that plaintiff was bound over by the magistrate to answer the charge made against him, and that the district attorney, who under the statutes of Colorado alone determines whether to file an information against one charged with a crime or not, did conclude to file the several informations against plaintiff after he was acquitted of the charges preferred before the magistrate, defendant’s counsel contend that the complaint made a prima facie showing of probable cause for each and all the prosecutions of plaintiff, and that this prima facie showing was not overcome by other averments of the complaint, and as a result that the court committed no error in directing a verdict for the defendant.
It is well settled that the binding over by an examining magistrate constitutes prima facie evidence of probable cause for the prosecution of the accused; but our attention has not been called to any case, neither have we in our investigation found any, except the case of Giusti v. Del Papa, 19 R. I. 338, 33 Atl. 525 (upon which defendant strongly relies), which imputes to the fact of binding over any greater force or effect than that of presumptive or prima facie evidence of probable cause. That case, as first decided, held that the binding over constituted conclusive evidence of probable cause, but on rehearing [223]*223the court nominally receded from that view, but held that a declaration that defendant prosecuted plaintiff maliciously and without probable cause stated no cause of action, provided it appeared in the declaration without any showing of inducing fraud, perjury, or other unfair means that the plaintiff was bound over and afterwards indicted by the grand jury. It is there said:
“The question is one of pleading, and the allegation of facts which are prima facie evidence of probable cause necessarily stands as conclusive until something further is alleged to rebut the presumption arising from that allegation.”
This may be true. But is not the allegation that the defendant prosecuted plaintiff “maliciously and without any reasonable or probable’ cause whatever” such an allegation? It is said in the Giusti Case that “the averment of want of probable cause by itself is not a statement of fact, but only a conclusion of law.” With due deference to the distinguished court which rendered that decision, we find ourselves unable to agree with this statement. It seems to us that an allegation of want of probable cause is an allegation of an ultimate fact, a condensed expression which by practice and established usage is made to signify that defendant did not have a reasonable ground to believe that plaintiff was guilty, based upon facts and circumstances sufficiently strong in themselves to induce such a belief in the mind of an ordinarily prudent person. The Supreme Court of the United States in Stewart v. Sonneborn, 98 U. S. 187, 194, 25 L. Ed. 116, said:
“The question of probable cause is a mixed question of law and of fact. Whether the circumstances alleged to show it probable are true, and existed, is a matter of fact; but whether, supposing them to he true, they amount: to a prohable cause, is a question of law. ⅜ * * It is, therefore, generally the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it: proves, with instructions that the facts found amount to proof of probable cause, or that they do not.”
To the same effect is the case of Mercantile Co. v. Kyes, 9 Colo. App. 190, 48 Pac. 663; Firer v. Lowery, 59 Mo. App. 92.
Whether an accused person be bound over or discharged by an examining magistrate is evidence only tending to prove or disprove the ultimate issuable fact — the existence or nonexistence of probable cause for the prosecution. It is made by law prima facie evidence of such probable cause, but that is only a presumption which is disputable. In other words, a “binding over” is a fact which the jury may consider together with all other pertinent facts disclosed in evidence in determining the issue of probable cause, and in the absence of any other countervailing evidence it is sufficient to establish it; but, like other rebuttable presumptions, it yields to the force and effect of the actual facts when proved. Wabash R. Co. v. De Tar, 73 C. C. A. 166, 141 Fed. 932. 4 L. R. A. (N. S.) 352; Rich v. Chicago, M. & St. P. R. Co., 78 C. C. A. 663, 149 Fed. 79.
Accordingly, we conclude that a complaint which by clear averment. charges that defendant maliciously and without any probable cause whatever caused plaintiff to be prosecuted states a good cause of action, notwithstanding the fact that a recital or averment is found [224]*224in the complaint that in the course of the prosecution plaintiff was bound over by an examining magistrate.
It is also contended that, when a complaint discloses a binding over by a magistrate, that action must be attacked for fraud, perjury, or other unfair means in securing it in order to negative its effect and state a cause of action, and our attention is called to the following authorities in support of the contention: Giusti v. Del Papa, supra; Burt v. Place, 4 Wend. (N. Y.) 591; Spring & Stepp v. Besore, etc., 12 B. Mon. (Ky.) 551, 555; Crescent Live Stock Co. v. Butchers’ Union, 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614; Phillips v. Village of Kalamazoo, 53 Mich. 33, 18 N. W. 547; Boogher v. Hough, 99 Mo. 183, 12 S. W. 524; Olson v. Neal, 63 Iowa, 214, 18 N. W. 863. An examination of these and other cases cited by defendant discloses that all of them except the Giusti Case deal with the judgment of conviction by a court possessed of jurisdiction to hear and determine the guilt or innocence of the accused and to inflict punishment if guilt be found. In these and many other cases it is held that the conviction of a person charged with an offense by a court competent to convict and punish, or a decree in a civil action against a defendant, whether the conviction or decree is set aside on appeal or not is conclusive evidence of probable cause in an action for malicious prosecution unless the judgment of conviction or the decree is successfully challenged for fraud, perjury, or some other unfair means resorted to in securing it. With that doctrine we make no dispute. - Under familiar principles a final judgment can be attacked only for fraud or kindred reasons. But we are unwilling to accord to a binding-over order made by an examining magistrate that degree of conclusiveness., His function is exhausted, not when he pronounces a final judgment of guilt or innocence of the accused, as in case of a trial on that issue, but when he pronounces the evidential fact that there is or is not probable cause to believe him guilty.
The cases giving peculiar force and effect to a judgment of final conviction do not, in our opinion, constitute authority for giving like effect to the order of an examining magistrate binding over an accused person for a trial which may or may not result in conviction. In the case of Ross v. Hixon, 46 Kan. 550, 26 Pac. 955, 12 L. R. A. 760, 26 Am. St. Rep. 123, the Supreme Court of Kansas reached the same conclusion we have reached. That was a case involving the identical question we are now considering. It arose on the introduction of testimony, and not as a matter of pleading; but we perceive no difference in the applicatory rule arising from that fact. As in this case, so in that, the trial court of its own motion, after plaintiff had introduced his evidence, including the proceedings before the justice of the peace resulting in the binding-over order, directed a verdict for the defendant. The Supreme Court of Kansas, on a writ of error taken from that judgment, said:
“The sole question discussed. * * * is as to the weight to be given to the finding of the examining magistrate as to whether it is prima facie or conclusive upon the question of probable cause, ahd whether or not in either case the finding must be attacked for fraud or undue means by proper allegations in the petition.”
[225]*225After considering many cases cited, including many of those relied on by defendant in this case, the court said:
“We have been unable to find a reported case in which the rule is held as claimed by counsel for defendant in error.”
Our conclusion is that there was no necessity for attacking in the complaint the binding-over order for fraud, or any other improper practices in securing it, and that the Circuit Court erred in directing a verdict so far as the prosecution instigated before the justice of the peace was concerned.
Defendant next contends that the fact that the district attorney concluded to file and did file the several successive informations in tile district court is fatal to complainant’s cause of action based on prosecutions in that court. This raises the question whether the action of the district attorney in filing informations under the statutes of Colorado constitutes prima facie evidence of probable cause, like the binding over by an examining magistrate.
The statutes of Colorado permit accusations of offenses to be made by information as well as by indictment, and provide that all informa-tions shall be filed in the court having jurisdiction of the offense by 1hc district attorney as informant; that he or his deputy shall sign the same; and that in all cases where the accused has not had a preliminary examination some credible person who has knowledge of the commission of the offense must make and file an affidavit showing that the offense was committed before the information is filed. Mills’ Ann. So Rev. Supp. Colo. § 1432 (a, b). Discretion is confided in the district attorney to determine whether in any given case an information ought or ought not to be filed. Section 1432 (g, h). lie is the official possessed of the power and charged with the duty to accuse of crime by information in like manner as the grand jury is in cases by indictment. One in his proper sphere is quite the same accusing body as the other in its proper sphere.
Although an affidavit showing the commission of an offense by some one having knowledge of the fact is a condition to the exercise of the power to file an information and although such affidavit may be the initiating or moving cause, the ultimate responsibility of deciding whether to file it or not rests with the district attorney. He is not bound to file it merely because some one has made an affidavit. He cannot act arbitrarily, but should act only with a wise and judicial discretion. He should he the protector of the innocent against unwarranted, as well as the fearless prosecutor in cases of warranted accusations.
'Che Supreme Court of Missouri in the case of State v. Ransberger, 106 Mo. 135, 17 S. W. 290, had under consideration the obligations and duties of a district attorney under a statute which required him, whenever he had knowledge of the commission o f an offense or should be.informed thereof by a verified complaint of another, to file an information, took occasion to make the following sage observations:
“If is true the statute provides that, when the prosecuting attorney is informed of the commission of an offense hy the affidavit of another, it shall be his duty to file an information. But this language ought not to be so [226]*226construed as to give the prosecuting attorney no discretion in the premises; such construction would nullify the constitutional provision requiring criminal charges to he preferred by grand juries or sworn officers who stand indifferent between accused parties and the state, and would subject the citizen to harassment by a criminal prosecution haring no higher basis than the malice of his enemy. * * * The knowledge [of the commission of the offense] the statute requires of him may be acquired in various ways; he may have personal knowledge of some of the facts, and information from others as to other facts, or information from others as to all the facts.”
Much more, in our opinion, are these observations warranted in cases like the present, where there is no express,statute on the subject.
The finding of an indictment by a grand jury as a result of its investigation is generally held to be prima facie evidence of probable cause for the prosecution of the person indicted, and we find much reason for holding that the filing of an information by a district attorney of Colorado as a result of his investigation should have the-same probative force. In that state, where power is conferred upon the General Assembly by the Constitution (article 2, § 23, Bill of Rights) to “change, regulate or abolish the grand jury system,” and where legislation to that effect has been enacted (section 1432a, Mills’ Ann. St.; In re Dolph, 17 Colo. 35, 28 Pac. 470; Nesbit v. People, 19 Colo. 441, 36 Pac. 221), the Legislature has undertaken to assimilate the proceeding by information to that by indictment. Section 1432e,’ Mills’ Ann. St. Rev. Supp., provides that;
“All provisions of law applying to prosecutions upon indictments, to writs and process therein, and the issuing and service thereof, to motions, pleadings, trials and punishments, or the passing or execution of any sentence, and to all other proceedings in eases of indictment, whether in court of original or appellate jurisdiction, shall to the same extent and in the same manner as near as may be, apply to informations and to all prosecutions and proceedings thereon.”
A district attorney in, Colorado is by law a dignified and important officer of the state, ordained and provided for by the Constitution (article 6, § 21), and notwithstanding the fact that he may not subpoena witnesses to testify before him as an examining' magistrate or grand jury may do in the performance of like functions, he nevertheless has the means of inquiry deemed by the state sufficient to enable him to wisely and prudently determine whether there is reasonable ground to believe a person guilty of an offense.
Conceding to his action in filing an information prima facie effect as evidence of probable cause is in pari materia with the general policy of the state of Colorado declared by the statute just quoted in relation to informations; they are closely assimilated to indictments in the matter of procedure, practice, and otherwise, and it seems reasonable to assimilate them in their evidential significance.
We therefore conclude that the fact that the district attorney, in the exercise of judgment and discretion confided in him by law, filed informations charging plaintiff with the offenses in question, constituted prima facie evidence of the existence of probable cause for the prosecutions which followed.
Tor the reasons already given in determining the effect of such prima facie evidence resulting from the binding-over order of an ex-[227]*227amiuiug magistrate, the complaint stated a good cause of action, notwithstanding the failure to aver that the informations were secured by fraud or other unfair means. The general allegation of the complaint that defendant caused the informations to be filed and the plaintiff to be arrested thereon without any reasonable or probable cause therefore stated an ultimate fact, and thereby tendered an issue to be determined by all the proof taken together, including the presumption arising from the filing of the informations.
It is contended that defendant is charged with only having “caused” the affidavits to be filed and plaintiff to be arrested and prosecuted, and that such allegation is not a sufficient charge that defendant initialed the prosecution and is responsible for its consequences. We think this criticism is without merit. The verb “to cause” is very comprehensive, and an allegation that a person caused one to be arrested and prosecuted is sufficient, if proved, to hold such person to responsibility therefor.
Again, it is contended that the action of the district attorney in filing the informations was the commencement of the proceeding, and that responsibility therefor rests with him alone and not. with defendant, even if the defendant by affidavit or otherwise moved him to take official action or caused him to proceed with the prosecution. In our opinion this contention, too, is untenable. The district attorney under the laws of Colorado is a functionary appropriately and lawfully moved to action by others. State v. Ransberger, supra. If the defendant by affidavits or otherwise moved him to file the informa-tions and proceed with the prosecution, its action was the causa cau-sans of the prosecution (Carp v. Queen Ins. Co., 203 Mo. 295, 101 S. W. 78, recently decided) ; and if the defendant did so maliciously, and without reasonable or probable cause, it is liable for the damages resulting therefrom. The judgment is reversed, and the cause remanded to the Circuit Court with directions to grant a new trial.