Scrivani

This action is one of malicious prosecution. Defendant appeals from the judgment. It is first insisted that the motion for a nonsuit should have been granted. Whatever may have been the status of the evidence at the time the motion was made, it is not necessary to decide, for the court is clear that, taking all the evidence together, it is sufficient to support the verdict and judgment. It is a well-settled rule that if all the evidence, considered together, supports the judgment, then the order denying the motion for a nonsuit will not be disturbed, however weak the case may have been at the time plaintiff closed his evidence. If the testimony of defendant’s own witnesses indicated that he, in making the charge, acted without probable cause, then any weakness existing in plaintiff’s ease upon that point was cured. The same rule is equally true when applied to the question of malice in fact. (Vaca Valley etc. R. R. v. Mansfield, 84 Cal. 565.)

The jury wer'e instructed that plaintiff, in order to recover, “has only to show to your satisfaction by a preponderance of the evidence the following: 1. That the prosecution was without probable cause; 2. That the prosecution was…