The opinion
Opinion by
Orlady, J.,
The second assignment of error, viz.: “The learned court below erred in refusing the defendant’s motion for a new trial,” has been so frequently held by both the Supreme and this court, not to be reviewable except for flagrant error, that it is not necessary more than to refer to Stern v. Johnson, ante, p. 1, filed December 15, 1908, in which the authorities are collated.
The first assignment of error is, “The learned court erred in refusing to charge that defendant was entitled to a verdict.” The action is one for malicious prosecution, in which the plaintiff was discharged before the magistrate on the application of the prosecutor, after he had been arrested and committed to prison.
To support an action for malicious prosecution the plaintiff must show want of a probable cause. While it is exclusively the province of the jury to pass upon the testimony and to ascertain the facts, it is the duty of the court to say as a matter of law, where the facts are undisputed, whether the facts estab *221 lished do or do not amount to probable cause. What is probable cause, and whether it exists under an admitted or clearly-established state of facts, is a question of law for the court. The question is not whether the person charged with a crime was guilty, but what were the indications of his guilt. The test is the belief of the prosecutor in the existence of the probable cause, based on reasonable grounds. The question does not depend upon the actual state of facts in the case, but upon the honest and reasonable belief of the prosecutor. It is a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the accused party guilty of the offense: Robitzek v. Daum, 220 Pa. 61 ; Markley v. Snow, 207 Pa. 447 ; Campbell v. Sidwell, 20 Pa. Superior Ct. 183 .
The real issue, whether the prosecution was brought in good faith, and on probable cause, was very clearly stated by the learned trial judge, and the instruction given to the jury was so clear, that there could be no doubt in regard to their application of the law to the disputed facts as submitted to them.
The case was carefully tried in the court below, and there was no substantial error of which the defendant has just ground for complaint. The judgment is affirmed.