Weinburg

Action for malicious prosecution of the plaintiff on a charge of having bought and received stolen property, for which he was tried in the police court and discharged. The jury returned a verdict for plaintiff, assessing his damages at $3,333, for which sum judgment was rendered. The defendant brings this appeal from an order denying his motion for a new trial.

1. Counsel for appellant contend that the court erred in its instruction to the jury as to what constitutes probable cause for the criminal prosecution complained of. The exception upon which this point rests was taken at the close of the instructions given, and was in the following language: “I desire to except .... to your instruction to the jury as to what constitutes probable cause, and your refusal to instruct, the jury that it is for the court to determine what probable cause is, and not for the jury.” Waiving the indefiniteness of the exception, it is a sufficient answer to this point that the court did instruct the jury as to what would constitute probable cause substantially as requested by defendant’s counsel, and very nearly in the same language. Besides, the court was not requested to instruct that it was for…