Fleischhauer

This is an action for malicious prosecution. The plaintiff was arrested on a charge of grand larceny preferred by the defendant, and at the hearing before a justice of the peace he was discharged. He thereupon brought this action for damages for malicious prosecution, and after a trial by jury recovered judgment against the defendant for the sum of $377 and costs.

This is an appeal from the judgment and from an order denying defendant’s motion for a new trial.

Very briefly the facts of the case are, that plaintiff and defendant lived in the same neighborhood in San Jose; that defendant was engaged in the business of selling milk, and owned a mare, which she drove in a wagon in making deliveries; that on the evening of March 6, 1905, the mare was put in pasture, she was missing the next morning, and, after considerable search, was found in the barn of plaintiff.

One of defendant’s witnesses testified that the morning after the mare had been placed in the field, he examined the fences, - gates and bars of the inclosure, and found them all in good repair; that the gates were closed, and the bars up; that no other animal was missing.

The evidence introduced on behalf of the…