WHITING, J.
Judgment for damages for malicious prosecution. Appeal from 'such judgment, and from an) order denying a -new trial-.
[1] The alleged malicious prosecution was based upon a writing which, we will hereinafter term am “information” to distinguish .s'ame from the “complaint” in; the present action. Defendant questions the sufficiency of such, information as a basis for the present action. He -contendsi that such information did not state any offense under the laws of this state, and that, in order for it “to serve as ai basis for the action of malicious prosecution, the original criminal (prosecution must have -been upon a sufficient affidavit, complaint, information, or indictment.” The information charged that, at a certain time -and place, the plaintiff in the present action, “did abduct the said Anton Osier’s daughter * * * Katie Oster, contrary to; -the form- of the statute in such case made ,and provided, and against- the peace 'and dignity of the state of South Dakota, * * * -and asks that the said’ G. Vander Linden may be arrested ,and dealt with according to law.” To abduct the daughter from the father is a civil wrong just as would be the abduction of a son from a father, or the father from a child. Section) 32, C. C. To abduct a female is- not crime under the laws of this state, unless, 'among other prescribed conditions, the abduction isi 'for some one or more of several purposes [118]*118.mentioned in sections 333, 334, and' 335, Pen. C. The information1 in question comes as far from alleging- a criminal offense as would an information which charged one with breaking - into the dwelling house of another without charging that such breaking was with some unlawful intent. A person reading or hearing of- this charge might imagine such abduction to be for purposes of prostitution, thus making it criminal under section 334, supra; or with intent to compel the victim by force, menace, or duress, to marry some party, thus making .it criminal under section 333, supra; or might even draw upon his imagination to the extent of .seeing a case of abduction of a girl under 15 years of age, abducted from her parent or guardian for purpose of marriage, concubinage, or prostitution, thus making it criminal under section 335, supra; just as one might, upon hearing that one was accused of breaking into another’s house, imagine that 'it was done with intent to rape a female • residing therein, thus making burglary out of such ¡breaking. Suppose this information had .alleged that plaintiff did abduct “John Oster contrary to the form-,” etc. It would have come just( as near alleging a criminal offense as it .did worded as it was.; it might not have opened up quite as broad a -field for the play, of the imagination.
[2] Plaintiff alleged that defendant “made complaint-charging the plaintiff with the crime of abduction, -and charging plaintiff with abducting one Katie Oster, the daughter of defendant.” The information was offered! and, over defendant’s objection, received in evidence to .prove the above allegation. The ground of defendant’s objection to the receipt of the information in evidences was that it did: not state -any offense under the laws of this state. The overwhelming weight of authority -supports the proposition. that one who maliciously and without probable cause files what purports to be a criminal information, but which fails to state facts constituting a criminal offense, cannot urge 'the defect in such information as a defense to an action for malicious prosecution based thereon. Minneapolis T. M. Co. v. Regier, 51 Neb. 402, 70 N. W. 934; Dennis v. Ryan, 65 N. Y. 385, 22 Am. Rep. 635; Strehlow v. Pettit, 96 Wis. 22, 71 N. W. 102; Dueck v. Heisler, 87 Wis. 644, 58 N. W. 1101; Potter v. Gjertsen, 37 Minn. 386, 34 N. W. 746: The objection being insufficient, -there was [119]*119no -er-roír'-- in receiving the information in evidence, even though it was -insufficient to prove that defendant “made -complaint charging the-plaintiff w-ith the crime of abduction.”
' [3]'- Evidence was received) showing that defendant signed the information knowing that a warrant would issue if he signed it, and expecting that plaintiff would be arrested thereon and showing that he was so arrested. There was 'no evidence tending to prove that defendant knew that the facts -charged in -said information did not constitute a criminal offense.' There'was evidence from -which the jury may well have found that defendant had probable Cause for believing thiat -plaintiff had abducted his- daughter; but there was no- evidence tending to- show that it bad ever entered the -defendant’s mind- that plaintiff had abducted h-is -daughter -for any -one Of the immoral purposes above referred-to-, or tending to show that there existed1 any probable cause for -defendant to believe plaintiff guilty of all th-e necessary elements -constituting a criminal offense under any on-e of said sections. There was no -direct evidence of actual malice on the p-art of -defendant; at the best there was -hut -an opportunity for the jury to infer malice from- want of probable cause if such want of probable cause was found by it to- exist.
(4) The evidence having been properly received, as against any -objections- interposed, we must consider this case upon suda evidence and- need not consider th-e sufficiency o>r insufficiency of the pleadings. The trial court not only admitted the information in evidence as proof of the s-ai-d allegation contained in the complaint, hut it read to the jury sections' 334 and 335, supra, for the -expressed purpose -of explaining to- them1 “what is commonly understood by the crime of .abduction,” and it then instructed the jury that such information substantially charged such- cribae. Such .instruction'-was clea-rly erroneous. The tidal court assumed, for all purposes of -the trial, that the allegation — that 'defendant “made complaint charging the plaintiff with the -crime of abduction”— had been 'proven. Acting from such .premise, the court took from the jury the question, of .probable -cause -and held, as- a matter of law, that -defendant had no- ¡probable cause to prefer such criminal charge.-"' This ruling would- have' been correct if tlie premise had been correct. -
[5, 6] -But there' can he no- malicious 'prosecution unless [120]*120there be both malice and want of probable cause. What question of probable cause was presented to the court and jury under the evidence received? Wias it the question of whether defendant had probable cause to believe plaintiff guilty of criminal abduction —a charge he never made and one which he clearly did not have in mind; or was it the question of whether 'defendant had probable cause to believe plaintiff guilty of the act actually charged? We believe that, under both reason and authority, it was the latter. While the evidence upon suoh latter question was undisputed, and while, as a general rule, where the evidence is thus undisputed, the question of. probable cause is ornei of law for the court (Neys v. Taylor, 12 S. D. 488, 81 N. W. 901), yet we are of the opinion that, under the undisputed facts of this case, two equally reasonable men might arrive at different conclusions upon the question of whether defendant had .probable cause to' make the charge he 'did make, and this owing foi the different inferences that might properly be drawn from1 such facts. That being true, the ordinary rule was not applicable, and the question of probable cause was still a question of fact that' should have been left to the jury. Heyne v.
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WHITING, J.
Judgment for damages for malicious prosecution. Appeal from 'such judgment, and from an) order denying a -new trial-.
[1] The alleged malicious prosecution was based upon a writing which, we will hereinafter term am “information” to distinguish .s'ame from the “complaint” in; the present action. Defendant questions the sufficiency of such, information as a basis for the present action. He -contendsi that such information did not state any offense under the laws of this state, and that, in order for it “to serve as ai basis for the action of malicious prosecution, the original criminal (prosecution must have -been upon a sufficient affidavit, complaint, information, or indictment.” The information charged that, at a certain time -and place, the plaintiff in the present action, “did abduct the said Anton Osier’s daughter * * * Katie Oster, contrary to; -the form- of the statute in such case made ,and provided, and against- the peace 'and dignity of the state of South Dakota, * * * -and asks that the said’ G. Vander Linden may be arrested ,and dealt with according to law.” To abduct the daughter from the father is a civil wrong just as would be the abduction of a son from a father, or the father from a child. Section) 32, C. C. To abduct a female is- not crime under the laws of this state, unless, 'among other prescribed conditions, the abduction isi 'for some one or more of several purposes [118]*118.mentioned in sections 333, 334, and' 335, Pen. C. The information1 in question comes as far from alleging- a criminal offense as would an information which charged one with breaking - into the dwelling house of another without charging that such breaking was with some unlawful intent. A person reading or hearing of- this charge might imagine such abduction to be for purposes of prostitution, thus making it criminal under section 334, supra; or with intent to compel the victim by force, menace, or duress, to marry some party, thus making .it criminal under section 333, supra; or might even draw upon his imagination to the extent of .seeing a case of abduction of a girl under 15 years of age, abducted from her parent or guardian for purpose of marriage, concubinage, or prostitution, thus making it criminal under section 335, supra; just as one might, upon hearing that one was accused of breaking into another’s house, imagine that 'it was done with intent to rape a female • residing therein, thus making burglary out of such ¡breaking. Suppose this information had .alleged that plaintiff did abduct “John Oster contrary to the form-,” etc. It would have come just( as near alleging a criminal offense as it .did worded as it was.; it might not have opened up quite as broad a -field for the play, of the imagination.
[2] Plaintiff alleged that defendant “made complaint-charging the plaintiff with the crime of abduction, -and charging plaintiff with abducting one Katie Oster, the daughter of defendant.” The information was offered! and, over defendant’s objection, received in evidence to .prove the above allegation. The ground of defendant’s objection to the receipt of the information in evidences was that it did: not state -any offense under the laws of this state. The overwhelming weight of authority -supports the proposition. that one who maliciously and without probable cause files what purports to be a criminal information, but which fails to state facts constituting a criminal offense, cannot urge 'the defect in such information as a defense to an action for malicious prosecution based thereon. Minneapolis T. M. Co. v. Regier, 51 Neb. 402, 70 N. W. 934; Dennis v. Ryan, 65 N. Y. 385, 22 Am. Rep. 635; Strehlow v. Pettit, 96 Wis. 22, 71 N. W. 102; Dueck v. Heisler, 87 Wis. 644, 58 N. W. 1101; Potter v. Gjertsen, 37 Minn. 386, 34 N. W. 746: The objection being insufficient, -there was [119]*119no -er-roír'-- in receiving the information in evidence, even though it was -insufficient to prove that defendant “made -complaint charging the-plaintiff w-ith the crime of abduction.”
' [3]'- Evidence was received) showing that defendant signed the information knowing that a warrant would issue if he signed it, and expecting that plaintiff would be arrested thereon and showing that he was so arrested. There was 'no evidence tending to prove that defendant knew that the facts -charged in -said information did not constitute a criminal offense.' There'was evidence from -which the jury may well have found that defendant had probable Cause for believing thiat -plaintiff had abducted his- daughter; but there was no- evidence tending to- show that it bad ever entered the -defendant’s mind- that plaintiff had abducted h-is -daughter -for any -one Of the immoral purposes above referred-to-, or tending to show that there existed1 any probable cause for -defendant to believe plaintiff guilty of all th-e necessary elements -constituting a criminal offense under any on-e of said sections. There was no -direct evidence of actual malice on the p-art of -defendant; at the best there was -hut -an opportunity for the jury to infer malice from- want of probable cause if such want of probable cause was found by it to- exist.
(4) The evidence having been properly received, as against any -objections- interposed, we must consider this case upon suda evidence and- need not consider th-e sufficiency o>r insufficiency of the pleadings. The trial court not only admitted the information in evidence as proof of the s-ai-d allegation contained in the complaint, hut it read to the jury sections' 334 and 335, supra, for the -expressed purpose -of explaining to- them1 “what is commonly understood by the crime of .abduction,” and it then instructed the jury that such information substantially charged such- cribae. Such .instruction'-was clea-rly erroneous. The tidal court assumed, for all purposes of -the trial, that the allegation — that 'defendant “made complaint charging the plaintiff with the -crime of abduction”— had been 'proven. Acting from such .premise, the court took from the jury the question, of .probable -cause -and held, as- a matter of law, that -defendant had no- ¡probable cause to prefer such criminal charge.-"' This ruling would- have' been correct if tlie premise had been correct. -
[5, 6] -But there' can he no- malicious 'prosecution unless [120]*120there be both malice and want of probable cause. What question of probable cause was presented to the court and jury under the evidence received? Wias it the question of whether defendant had probable cause to believe plaintiff guilty of criminal abduction —a charge he never made and one which he clearly did not have in mind; or was it the question of whether 'defendant had probable cause to believe plaintiff guilty of the act actually charged? We believe that, under both reason and authority, it was the latter. While the evidence upon suoh latter question was undisputed, and while, as a general rule, where the evidence is thus undisputed, the question of. probable cause is ornei of law for the court (Neys v. Taylor, 12 S. D. 488, 81 N. W. 901), yet we are of the opinion that, under the undisputed facts of this case, two equally reasonable men might arrive at different conclusions upon the question of whether defendant had .probable cause to' make the charge he 'did make, and this owing foi the different inferences that might properly be drawn from1 such facts. That being true, the ordinary rule was not applicable, and the question of probable cause was still a question of fact that' should have been left to the jury. Heyne v. Blair, 62 N. Y. 19. It is urged that it is inconsistent and illogical to, hold that the fact that the: information did not charge a criminal offense cannot he urged in defense of the action for malicious prosecution, and at the same time hold that the question of probable cause must be restricted tO' the accusations actually made by defendant. Were it either inconsistent or illogical to1 so: hold it certainly would -not be so monstrous, so> fraught with, injustice, asi to hold that, if A., acting without malice and having probable cause to believe B. has abducted C., and fully believing that the mere: abducting of C. was a criminal' offense (whether C. be male or female and regardless of the purpose of the abduction-, makes -a charge that B. has abducted C. and .procures his arrest, he can- be held in damages f-or malicious ■prosecution; and1 this because he had no' probable cause to believe B. had made -such abduction for some forbidden purpose not dreamed of by A. and not charged! against B.
• This case must be distinguished! from one where it is proven or conceded that a party has maliciously and without probable cause charged! facts not constituting :a criminal offense. Such was the case of Dennis- v. Ryan, supra. This- case must be disfin-[121]*121guished- from- one where the party making -a charge not constituting a crime knew that it did not constitute a crime and' yet made it for the purpose of causing another’s arrest. This case must be .distinguished from a -case where -one charges the crime according to its -statutory name and then sets forth the alleged facts -constituting such -crime, and such facts -are insufficient to -constitute -any criminal offense. This case must be distinguished from a case where the -allegations of the information substantially charge some criminal offense.. Let -us suppose that what was charged iby defendant -did actually -constitute -a -crime, that he had probable cause for -believing -the truth of su-ch charge or, at least, was not moved- -by malice- in making same. He -coul-d not be h-olden no matter how mistaken he was. HioW then can he be liable if he acted without malice and with probable cause simply because if he had included in his charge some other allegation, the -offense charged would h-av-e been more heinous, and he would in -making such -other allegation have acted without probable cause? Suppose A., -believing that the mere breaking into- the house -of another constitutes a crime -and1 this regardless of .intent, an-cl having absolute knowledge that B. has -broken into his house, files a complaint so charging (but not charging-that -the breaking was- with intent to commit a crime) and B. is arrested. Can A. be liable in -damages for malicious prosecution any more than -he would h-av-e been if he had actually charged him with burglary and have been albl-e to show -probable cause for such -charge? The answer is obvious. The question must alway-s -be: Did the defendant -have .probable caus-e for -believing the particular charge to- -be true? Of -course, ini the case before us, -th-e plaintiff m-ay be injured nearly -or quite as much- -as he would have- been if defendant had charged him with- all the elements- o-f -criminal abduction-, but it is not the- amount of injury or the seriousness of the charges made that determines the fact of liability -as distinguished from amount of -liability. If the- ju-ry, under proper instructions, have fo-un-dl want of probable cause for making the charge preferred, then- and) -only then, under any- authorities where this exact question -was presentad, can defendant be hel-d liable; under many authorities he wio-uld .mot even then- be liable.
It is urged that ou-r views are in conflict with the majority opinion in Dennis v. Ryan, -supra, which- all must -concede is -a [122]*122leading authority -on the question of liability where the facts ■charged) do not constitute a crime. A careful' reading of such majority opinion) will -reveal that it -squarely and absolutely sustains our position-. As stated by the commissioner whio wrote such opinion, the italicizing being ours:
“The crime charged was forgery; it was alleged and stated in the indictment to' consist of an erasure of an indorsement of payment upon a bond-. ' This, it is insisted on -the part of the defendant, did- mot •'constitute the crime of forgery, and I- am inclined to think it did not; -and1 -because, as the defendant insists, it did' not, he claims that however false his accusation. was, or with what evil or malicious intent he instigated, the prosecution, and however much it may have vexed and- injured the plaintiff, he is not liable in this action, and the rea-so-n assigned in substance is that.it was through- the -misjudgment of the district attorney and the grand jury -that the indictment was found, a warrant issued, the plaintiff arrested and put upon his defense.”
Let us now note what the jurist then- said1 -and see how it agrees with our views .above expressed:
“I -do not doubt that if the defendant’s statement to the district attorney cmd the grand jur'y had been true, and that an indictment had been found and prosecuted u-pon his truthful statement, that this action could not have been maintained; in such case the ' defendant 'mould, not have been guilty of any wrong.”
In other words, where the insufficient 'allegations are true there can be no- liability 'simply because sufficient allegations would not have been true. Note alsoi the words of Lord- Campbell in Par-lie v. Daubs’-, 30 B. L. & Eq. 1x5, as quoted in Dennis v. Ryan, supra: '
“I think al-1- -that is necessary is that the defendant should falsely and maliciously cause the act to be done; and he did cause it, because, if he had1 not presented his petition and made a falsa affidavit, the judge could not and would not have made the -adjudication-. * * * There is- -no- doubt that if a person truly states to a judge, and ■ the judge threupon does an act which the law will not justify, the pai'ty who1 made the statement is not liable, because, in- -that -case, -the grievance complained1 of arises not- from the false -statement :of the party but [123]*123from a mistake of the judge. It would be. strange if, where a court is put in motion by a false and • malicious' statement, it should depend upon a nice question of law- whether there was a remedy or not.”
From an examination of numerous cases we feel justified in stating that there is no case, where the - facts appear in the opinion, ini which any court has held! a -partly -liable in an action for malicious prosecution, for making charges insufficient to^ constitute -a criminal offense, unless it appeared that the actual charges made -were made maliciously and -without probable cause.
[7] We therefore hold, upon both ¡reason and authority, the laiw toi be: Whenever a person makes a -charge against -another person for the purpose and with the intent of causing the arrest and criminal prosecution of stjeh other and the charge is made maliciously and without probable cause, the party making such Charge cannot defend an action for malicious prosecution upon the ground that the acts charged) did not .constitute a criminal offense. In .such case, the party making the charge is answerable for all damages naturally flowing front the malicious act, and may also be punished in exemplary damages; the fact that the acts charged do not constitute a criminal offense is then material ■only in so far as such- fact may affect the amount of actual damages suffered by the injured party. But before any person can be held liable in an action for malicious prosecution, whether the acts, charged by him constituted a criminal offense or not, it must appear that the charge actually or at least substantially made by 'him was not only made maliciously, but was made without prohable cause for believing the acts charged to be time.
[8] By the court’s instructions there were left to the jury but two questions, ma-lice and 'damages. The jurors were instructed that they could infer malice from' the want of probable cause, and were advised that defendant had no probable cause for making the charge. Instructing the .-jurors that they might infer malice from want of probable .cause, and then instructing them that want of probable cause was proven, left it possible for the jury to find malice without any consideration: of the facts from which, the jurors might have found' probable cause.
[9] Among the elements of damages submitted to. the consideration of the jury were personal mortification, mental suffer[124]*124ing, anxiety of mind, ignominy, disgrace. We must presume that all of; these elements were considered by the jury in the light of the instruction that the information “substantially charged” plaintiff with “the1 crime of abduction,” and in the light of the provisions of sections 334, 335, Pen. Code; in other words, we must presume that these several elements of damage were considered by the jury and considered! as flowing- or resulting from, a prosecution of plaintiff upon an information, charging him with some one of the heinous offenses' designated in such sections' of our Code. The jury was ini effect directed, in case it found the prosecution malicious, to allow damages for the mortification, mental suffering, anxiety of mind, ignominy, and disgrace suffered iby plaintiff, and to base such allowance upon the premise that he ¡had been charged with a most heinous offense instead of a •mere civil wrong. That this was prejudicial error is perfectly apparent.
[10] If the jury found, in the light of all the evidence, that defendant’s charge was malicious and without probable cause, and that the public understood such charge to impute' that plaintiff was guilty of a heinous offense, the jury had a right to' fix the actual damages accordingly; but it was for the jury and not the ■court to determine in -what manner and to* what amount plaintiff was damaged. It would be just as reasonable, in case A. charged B. with breaking into his (A.’s) house, to so instruct a jury, in an action for malicious prosecution brought by B. against A., that the: jury would be bound to measure B.’s damage on the theory that A. had charged B. with intent to commit a rape on the person of A’s daughter. The jury should have been so instructed that it would have been left to consider the actual fact' of the case and ¡been at liberty to> draw its own inferences and conclusions. Bor the purpose of determining the amount of damages, the fact that the informations did not charge a criminal complaint is to be considered. Shaul v. Brown, 28 Iowa, 37. 4 Am. Rep. 151; Finn v. Frink, 84 Me. 264, 24 Atl. 851, 30 Am. St. Rep. 348. It is for the jury to' determine what damages actually -flowed from what actually occurred.
We have gone thus fully into the questions discussed above to the end1 that upon a new trial the action may be tried out upon the proper theory. We would feel bound to grant a new trial [125]*125for reasons other than and in addition to, any of those herein-before mentioned.
[11] One of the grounds urged on the motion' for new trial _wa©:
“Excessive damages awarded -by the: jury, appearing to have been given under the influence of passion or prejudice.”
Even though there had been no error committed upon the trial of this case — even though, the evidence had fully supported the instructions upon which .it was submitted, we would have no hesitancy in declaring that the motion for new trial should have been sustained upon the above ground. When all the facts of this: case are taken into .consideration — the prior conduct of plaintiff, the nature and duration of the restraint placed upon him, the fact that he was discharged before his arrest had become known to the public, as well as many other facts that might be noted but a review of which could, at this time, serve no, useful purpose — the verdict of $3,000 actual damages can he explained upon no hypothesis', except that it was the result of passion and prejudice, and not the calm, and deliberate conclusion of 12 men.
The judgment and order appealed from are reversed.