,WADDILL, District Judge'
(after stating the facts as above). The assignments of error are 34 in number, but, in the view this court takes of the case, it will not be necessary to pass upon all of them. The exceptions were taken mainly to the court’s action in granting and refusing certain instructions, and amending others asked for by plaintiffs in error. The instructions, 24 in number, covered many difficult questions and various phases of the case. Five were given at the instance of defendant in error, 8 at the instance of the plaintiffs in error, the court amending, however, 2 of theirs, and rejecting altogether 10 others offered by them, and gave 11 instructions of its own.
It will be necessary to keep well in view just what the law is governing cases of this character. In order for the defendant in error to have maintained his suit, it was necessary for him to prove: (1) The existence of the prosecution, and the fact that plaintiffs in error were the prosecutors or instigators of the same; (2) that it finally terminated in his acquittal; (3) that it was instituted without reasonable or probable cause; and (4) that the plaintiffs in error were actuated by legal malice, — that is, improper or sinister motives; and that these four elements concurred.
It was not enough to establish that the prosecution complained of was instigated by the plaintiffs in error, and the proceedings instituted by them with malice and ill will towards defendant in error. It was necessary that the defendant in error should have gone a step further, and shown that there was no probable cause for the inauguration of the prosecution. If plaintiffs in error acted with probable cause, they were not liable in an action for malicious prosecution,- it matters not how vindictively they may have acted or what their motives may have been. Wheeler v. Nesbitt, 24 How. 544, 550; Stewart v. Sonneborn, 98 U. S. 187, 192, 194, 195; Crescent City Live-Stock Co. v. Butchers’ Union S. H. Co., 120 U. S. 141, 148, 149, 7 Sup. Ct. 472; Sanders v. Palmer, 14 U. S. App. 297, 307, 5 C. C. A. 77, and 55 Fed. 217; Munns v. De Nemours, 3 Wash. C. C. 31, Fed. Cas. No. 9,926; Scott v. Shelor, 28 Grat. 891, 899; Mitchell v. Wall, 111 Mass. 492; Howard v. Thompson, 1 Am. Lead. Cas. 200, 213; 1 Hil. Torts, c. 16, § 18.
It must also be borne in mind that from the evidence in this case plaintiffs in error Staunton, Silman, and Jarret did not occupy the same position as the plaintiff in error Coleman. They claim to have acted solely upon what Coleman told them, and defendant in error conceded that he talked with Coleman alone in reference to the papers alleged to have been stolen. There was no evidence that he had any conversation with. any of the plaintiffs in error except Coleman, and Coleman fully corroborated his co-plaintiffs in error, and testified that he communicated to them the fact that defendant in error desired to examine and take the papers in question for the purpose of destroying and making away with them, 'and said plaintiffs in error Staunton, Jarret, and Silman, [57]*57one and all, testified that in all did they acted in good faith and upon the information received from Coleman; .Staunton and Jar-ret swearing that their purpose was to preserve and protect the public records in their custody, and Silman that his was to prevent the destruction of his vouchers.
The purpose and intent with which plaintiffs in error acted was most material, as bearing upon the question of probable cause; for, while malice may be inferred from the absence of probable cause, still the lack of probable cause would not be presumed because of the existence of malice. Whether or not there is probable cause; for the institution of a criminal proceeding is sometimes a question of law and sometimes a question of fact. Where the facts are undisputed it is a question of,law, and should be determined by the court; otherwise, it is one of fact and for the jury. Crescent City Live-Stock Co. v. Butchers’ Union S. H. Co., 120 U. S. 141, 149, 7 Sup. Ct. 472; Stewart v. Sonneborn, 98 U. S. 187, 194; Sanders v. Palmer, 14 U. S. App. 308, 309, 5 C. C. A. 77, and 55 Fed. 217; Knight v. Railway Co., 9 C. C. A. 376, and 61 Fed. 87, 91.
It seems to us, upon the facts and evidence as certified in the record, there was no dispute as to why, and the circumstances under which, the plaintiffs in error Staunton, Silman, and Jarred acted. They and their co-plaintiff in error Coleman fully corroborated each other in every particular. Indeed, the only conflict was as to what occurred between defendant in error, Goshorn, and Coleman, of which Staunton, Silman, and Jarret had no knowledge, other than as communicated to them by Coleman, and what occurred at the time the papers were taken out of the box in the clerk’s office. Goshorn’s claim was that Coleman took the papers and gave them to him in the presence of his (Goshorn’s) brother, whereas the evidence of the plaintiffs in error was that Goshorn took the papers out of the box himself, and that Coleman was not in the record room at all. Upon this state of facts, there being really no conflict in the evidence as to Staunton’s, Silman’s, and Jarret’s connection with the institution of the criminal prosecution, and of the circumstances under which they acted, the jury should have been instructed that there exisled, so far as they were concerned, probable cause for the institution of the. criminal proceedings, and that the defendant in error, Goshorn, could not recover against them.
Staunton and .Jarret were each public officials, in charge of the public records of the court, one as clerk and the other as deputy clerk of the county court of Kanawha county, and Silman was, as late sheriff, interested personally in preserving the public records, which contained his vouchers used in settlement with the county officially. They all testified that they were reliably informed of the purpose of defendant in error to steal the public records; that they believed the information they received, and watched to see if the records would be taken, as they had been advised they would he, and, seeing the supposed theft, they immediately caused defendant in error to be held until they could consult counsel as to the propriety of swearing out the warrant, and that, upon such advice, they caused the warrant to issue. What less, [58]*58as honorable officers, could they have done? And as to all this it is to be borne in mind that there was, so far as they were concerned, apparently no conflict in the evidence, except as to the single question whether Goshorn himself took the papers from the box before starting away with them or whether Coleman handed them to him. Whatever may have been his purpose and motive in procuring the papers, or whether he had been deceived or misled by Coleman, were matters of which they, according to the undisputed evidence in the record, were in total ignorance, except as advised by Coleman, whom they believed.
The answer of the defendant in error to all this was* that the case was one in which the charge of conspiracy was made; that Coleman, Staunton, Silman, and Jarret were all conspirators, and therefore bound by the acts of each other, and they each stood, so far as defendant in error was concerned, in exactly the same position.
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,WADDILL, District Judge'
(after stating the facts as above). The assignments of error are 34 in number, but, in the view this court takes of the case, it will not be necessary to pass upon all of them. The exceptions were taken mainly to the court’s action in granting and refusing certain instructions, and amending others asked for by plaintiffs in error. The instructions, 24 in number, covered many difficult questions and various phases of the case. Five were given at the instance of defendant in error, 8 at the instance of the plaintiffs in error, the court amending, however, 2 of theirs, and rejecting altogether 10 others offered by them, and gave 11 instructions of its own.
It will be necessary to keep well in view just what the law is governing cases of this character. In order for the defendant in error to have maintained his suit, it was necessary for him to prove: (1) The existence of the prosecution, and the fact that plaintiffs in error were the prosecutors or instigators of the same; (2) that it finally terminated in his acquittal; (3) that it was instituted without reasonable or probable cause; and (4) that the plaintiffs in error were actuated by legal malice, — that is, improper or sinister motives; and that these four elements concurred.
It was not enough to establish that the prosecution complained of was instigated by the plaintiffs in error, and the proceedings instituted by them with malice and ill will towards defendant in error. It was necessary that the defendant in error should have gone a step further, and shown that there was no probable cause for the inauguration of the prosecution. If plaintiffs in error acted with probable cause, they were not liable in an action for malicious prosecution,- it matters not how vindictively they may have acted or what their motives may have been. Wheeler v. Nesbitt, 24 How. 544, 550; Stewart v. Sonneborn, 98 U. S. 187, 192, 194, 195; Crescent City Live-Stock Co. v. Butchers’ Union S. H. Co., 120 U. S. 141, 148, 149, 7 Sup. Ct. 472; Sanders v. Palmer, 14 U. S. App. 297, 307, 5 C. C. A. 77, and 55 Fed. 217; Munns v. De Nemours, 3 Wash. C. C. 31, Fed. Cas. No. 9,926; Scott v. Shelor, 28 Grat. 891, 899; Mitchell v. Wall, 111 Mass. 492; Howard v. Thompson, 1 Am. Lead. Cas. 200, 213; 1 Hil. Torts, c. 16, § 18.
It must also be borne in mind that from the evidence in this case plaintiffs in error Staunton, Silman, and Jarret did not occupy the same position as the plaintiff in error Coleman. They claim to have acted solely upon what Coleman told them, and defendant in error conceded that he talked with Coleman alone in reference to the papers alleged to have been stolen. There was no evidence that he had any conversation with. any of the plaintiffs in error except Coleman, and Coleman fully corroborated his co-plaintiffs in error, and testified that he communicated to them the fact that defendant in error desired to examine and take the papers in question for the purpose of destroying and making away with them, 'and said plaintiffs in error Staunton, Jarret, and Silman, [57]*57one and all, testified that in all did they acted in good faith and upon the information received from Coleman; .Staunton and Jar-ret swearing that their purpose was to preserve and protect the public records in their custody, and Silman that his was to prevent the destruction of his vouchers.
The purpose and intent with which plaintiffs in error acted was most material, as bearing upon the question of probable cause; for, while malice may be inferred from the absence of probable cause, still the lack of probable cause would not be presumed because of the existence of malice. Whether or not there is probable cause; for the institution of a criminal proceeding is sometimes a question of law and sometimes a question of fact. Where the facts are undisputed it is a question of,law, and should be determined by the court; otherwise, it is one of fact and for the jury. Crescent City Live-Stock Co. v. Butchers’ Union S. H. Co., 120 U. S. 141, 149, 7 Sup. Ct. 472; Stewart v. Sonneborn, 98 U. S. 187, 194; Sanders v. Palmer, 14 U. S. App. 308, 309, 5 C. C. A. 77, and 55 Fed. 217; Knight v. Railway Co., 9 C. C. A. 376, and 61 Fed. 87, 91.
It seems to us, upon the facts and evidence as certified in the record, there was no dispute as to why, and the circumstances under which, the plaintiffs in error Staunton, Silman, and Jarred acted. They and their co-plaintiff in error Coleman fully corroborated each other in every particular. Indeed, the only conflict was as to what occurred between defendant in error, Goshorn, and Coleman, of which Staunton, Silman, and Jarret had no knowledge, other than as communicated to them by Coleman, and what occurred at the time the papers were taken out of the box in the clerk’s office. Goshorn’s claim was that Coleman took the papers and gave them to him in the presence of his (Goshorn’s) brother, whereas the evidence of the plaintiffs in error was that Goshorn took the papers out of the box himself, and that Coleman was not in the record room at all. Upon this state of facts, there being really no conflict in the evidence as to Staunton’s, Silman’s, and Jarret’s connection with the institution of the criminal prosecution, and of the circumstances under which they acted, the jury should have been instructed that there exisled, so far as they were concerned, probable cause for the institution of the. criminal proceedings, and that the defendant in error, Goshorn, could not recover against them.
Staunton and .Jarret were each public officials, in charge of the public records of the court, one as clerk and the other as deputy clerk of the county court of Kanawha county, and Silman was, as late sheriff, interested personally in preserving the public records, which contained his vouchers used in settlement with the county officially. They all testified that they were reliably informed of the purpose of defendant in error to steal the public records; that they believed the information they received, and watched to see if the records would be taken, as they had been advised they would he, and, seeing the supposed theft, they immediately caused defendant in error to be held until they could consult counsel as to the propriety of swearing out the warrant, and that, upon such advice, they caused the warrant to issue. What less, [58]*58as honorable officers, could they have done? And as to all this it is to be borne in mind that there was, so far as they were concerned, apparently no conflict in the evidence, except as to the single question whether Goshorn himself took the papers from the box before starting away with them or whether Coleman handed them to him. Whatever may have been his purpose and motive in procuring the papers, or whether he had been deceived or misled by Coleman, were matters of which they, according to the undisputed evidence in the record, were in total ignorance, except as advised by Coleman, whom they believed.
The answer of the defendant in error to all this was* that the case was one in which the charge of conspiracy was made; that Coleman, Staunton, Silman, and Jarret were all conspirators, and therefore bound by the acts of each other, and they each stood, so far as defendant in error was concerned, in exactly the same position. This assumes that a charge of conspiracy is all that is necessary, which is not true. It must be followed by proof, and that proof must be sufficient to connect all of the alleged conspirators with the original unlawful design before the separate act of one can be imputed to them all, and proof of this appears to us to be utterly lacking in this case.
Among the instructions given by the lower court were the following, being No. 4, offered by the defendant in error, and the court’s No. 9:
“No. 4. The court instructs the jury that if they believe from the evidence that the purpose and object of the plaintiff, in getting- possession of the said road orders in controversy in this suit, was to examine them, in order that he might ascertain their validity or integrity, and not to destroy them, and that the defendant Coleman was made acquainted with such intention and purpose on the part of the plaintiff before he came in possession of said orders, then the arrest and prosecution of the plaintiff for the felonious taking of such orders was without probable cause, and the jury should so find.”
“No. 9. The court instructs the jury that if they find from the evidence that the defendants Silman, Staunton, and Jarret, through defendant B. A. Coleman, placed the county orders mentioned in this suit where the plaintiff could get them, and that it was arranged by Coleman on behalf of the defendants with the plaintiff in this action that they would be placed in a certain box in the clerk’s office, and that they were so placed, and that the plaintiff was informed by Coleman where the papers were, and that he could get them, and that the defendants Staunton, Silman, and Jarret agreed with Coleman that they should be so placed, then, under such circumstances, the taking of such orders was not larceny; and if the jury further believe from the evidence that the plaintiff was arrested and prosecuted for such taking,' then no probable cause existed for such prosecution.”
These two instructions seem to us erroneous, and clearly calculated to mislead the jury, to the prejudice of the plaintiffs in error Staunton, Silman, and Jarret, in any view that may be taken of the case. In instruction No. 4, the jury were told that if the purpose of Goshorn in taking the road orders in question was to examine them to ascertain their validity, and not to destroy them, and that plaintiff in error Coleman was acquainted with such intention on his part before Goshorn came in possession of said papers, then that the arrest and prosecution of defendant in error was without probable cause, and they should so find. The instruction is fatally defective, in that [59]*59it makes no distinction between plaintiffs in error Coleman, Staunton, Silman, and Jarret, and charges Coleman’s co-plaintiffs in error with knowledge of facts communicated to Mm alone.
The court’s instruction No. 9 is subject to the same objection in part as No. 4. It leaves out of view entirely the question of whether or not plaintiffs in error Staunton, Silman, and Jarret acted in good faith in what they did, and the purpose and intent with which defendant in error, Goshorn, acted in what he did. It practically takes the case away from the jury on these two questions, and seems clearly erroneous when read in connection with court’s instructions Nos. 8 and 10, which immediately precede and follow it, as follows:
“No. 8. Tlie court instructs the jury that the county orders given in the evidence in this case having been paid off and satisfied, and having no actual value, but being simply papers filed in the elerk’s office oí the court, are not in law subjects of larceny.”
“No. 10. The court instructs the jury that if the papers were taken as set out and described in the court’s eighth instruction, and that there was no such value in the papers as would induce the plaintiff to steal them, then this fact is a potential fact, tending to show a want of probable cause.”
By instruction No. 8, it will be seen that the court told the jury that these road orders were not the subject of larceny, and by the ninth instruction that if they were taken, as therein stated, the taking of them was not larceny, and that no probable cause existed for the prosecution. By court’s instruction No. 10 the jury were told that if ihe papers were such as the court referred to in its instruction No. 8, and there was no such value in them as would induce the defendant in error to steal them, then, that was a potential fact tending to show a want of probable cause.
Aside from the last-named instruction being argumentative, we think the whole theory of these three instructions, — Nos. 8, 9, and 10,— in so far as they deal with the question of the value of the road orders, and their not being- the subject of larceny, was erroneous, and that they should not have been given. The action of the criminal court of Kanawha county, W. Va., on this question, of whether or not these papers were the subject of larceny, is binding upon this court in a suit for malicious prosecution, based upon the existence of that case. That court passed upon the validity of the indictment found by the grand jury against the defendant in error, overruling the demurrer thereto and to each count thereof, and expressly refused to charge the jury that said road orders were not the subject of larceny. Under ihat indictment defendant in error was tried. Upon a conviction thereunder by the jury, that decision, until reversed and set aside hv an appellate court, would have been conclusive against the defendant therein, as it would have been conclusive in an action for malicious prosecution growing out of its institution. Such conviction, however, was not .had, and the defendant in error was acquitted; but the judgment of the court is none the less binding and valid upon the questions necessarily involved in the-maintenance of the indictment, to wit, that a criminal offense was charged. Such decision is entitled to full force and effect everywhere, and to he recognized in all proceedings growing- out of, arising under, or dependent upon the existence of that case, and to it should be given due effect, [60]*60under the-constitution and laws of the United States. The rule has respect to the court and its judgment, and not to the parties. The case was one within 'its jurisdiction, and it is conclusively presumed, in the absence of fraud, to have acted impartially and honestly, and its judgment, rendered under such circumstances, imports verity. Any departure from this principle would go far to destroy the integrity and value of the judicial system. Dupasseur v. Rochereau, 21 Wall. 135; Embry v. Palmer, 107 U. S. 3, 2 Sup. Ct. 25; Crescent City Live-Stock Co. v. Butchers’ Union S. H. Co., 120 U. S. 146, 147, 159, 7 Sup. Ct. 472.
Several of the assignments of error involve the question of how far the fact that the plaintiffs in error Staunton, Jarret, and Silman consulted counsel before swearing out the warrant against the defendant in error, and acted upon such advice, served to relieve them from liability in this action. The court gave two instructions bearing upon this qúestion, and rejected two offered by the plaintiffs in error; and while the exceptions and assignments of error relate to the rejection of the two instructions offered and the giving of the two by the court, the said assignments are more particularly directed at the limitation the court made in the instruction on this question as to the time when counsel was consulted than to the terms in which the instructions were couched. The court emphasized the fact that consulting counsel, after the defendant in error, G-oshorn, was placed in the custody of the sheriff, and before the swearing out of the warrants against him, some hours later, would not avail as a defense, and should not be considered in determining whether probable cause existed or not at the commencement of the proceedings; and by another instruction, offered by defendant in error,a the court instructed the jury “that the prosecution of the plaintiff, as alleged in the declaration, began with his arrest in the clerk’s office.” That the advice of reputable counsel, bona fide sought, and given upon full and fair statement of all the facts and circumstances, and as a consequence of which a prosecution was instituted, will serve as a defense in a suit for malicious prosecution, seems to be too well settled to admit of serious contention. Stewart v. Sonneborn, 98 U. S. 187; Sanders v. Palmer, 14 U. S. App. 297, 5 C. C. A. 77, and 55 Fed. 217; Forbes v. Hagman, 75 Va. 168. This is what was done in this case. The evidence is that the lawyer consulted was of very high standing, a former prosecuting attorney for the county, the father of the then prosecuting attorney, who frequently assisted his son in prosecutions, and who was himself the assistant United States attorney for the state; that plaintiffs in error Staunton, Silman, and Jarret “explained to him all the facts relative to the matter, and all the circumstances leading to Goshorn’s arrest, including the plan arranged to catch him, and the information received by them from Coleman, both before and after the plan was arranged,” and asked for his advice in-the premises; that he advised them that Goshorn should be arrested, and drafted the warrant himself. Was this advice given too late, as held by the lower court? There was no count in the declaration for false imprisonment. The suit was one solely of malicious, prosecution, and we think that the advice taken before the issuance of the warrant [61]*61was sufficient. If false imprisonment had also been charged, the rule would, of course, be different. The test is whether a suit for false imprisonment could be maintained for the arrest made in the clerk’s office in this case before the issuance of The warrant. Manifestly it could. Such arrest was extrajudicial, without legal process, and it is false imprisonment, as distinguished from malicious prosecution. How. Mal. Pros. 8; Murphy v. Martin, 58 Wis. 278, 16 N. W. 603; Colter v. Lower, 35 Ind. 285; Lewin v. Uzuber, 65 Md. 341, 344, 4 Atl. 285.
Another of the assignments of error relates to the admission of evidence during the trial, as set forth in the bill of exceptions No. 2; the question being whether defendant in error, Goshorn, could prove by a witness the statements made by (loshorn to the witness on Sunday or Monday preceding the Tuesday on which the papers were taken, with regard' to what was his (Goshorn’s) object and purpose in procuring the papers. This evidence was admitted, and we think improperly, against the objection of the plaintiffs in error. Whether such evidence might possibly have been introduced in a criminal prosecution it is unnecessary to decide, but manifestly in this case, upon a plea of not guilty, it had no place. The issue joined was not whether defendant in error was guilty of the crime alleged against him, but whether plaintiffs in error had probable cause to believe at the time, and under the circumstances that they acted, that he was guilty. So far as they were concerned, if for no other reason, it should have been excluded as hearsay evidence. There is no pretense that the plaintiffs in error, or either of them, heard or knew anything of the statements claimed to have been made by Goshorn to the witness, and, at best, it was a self-subservient statement, made by the defendant in error, and which could not he used in his own behalf. Whart. Ev. (2d Ed.) § 1101; Tayl. Ev. § 523; Whitney v. Houghten, 127 Mass. 527; Duvall’s Ex’r v. Darby, 38 Pa. St. 56; Scott v. Shelor, 28 Grat. 891, 895.
For these reasons, and without further discussing the assignments of error, the decision of the lower court is reversed, and the case remanded, with instructions to award a new trial therein. Reversed.