The opinion
This case having been submitted under Supreme Court rule 46, the opinion of the court was prepared by
Mr. Justice SOMERVILLE.
On the undisputed facts of the case, plaintiff was not guilty of trespass after warning, and, as a matter of law, there was no probable cause for his prosecution on such a charge, apart from the advice of counsel. This was, in effect, the plain instruction given to the jury by the trial judge.
On the other hand, there seems to have been no express malice or ill will on the part of the prosecutor, though legal malice ought perhaps to have been inferred from her confessed purpose to use the criminal process to accomplish her purely private design of protecting the premises against plaintiff’s un-svelcome presence in the house, pending his sister’s arrival from Denver. Jordan v. A. G. S. R. R. Co., 81 Ala. 220, 226 , 8 So. 191 ; Lunsford v. Dietrich, 93 Ala. 565, 569 , 9 So. 308 , 30 Am. St. Rep. 79 ; Ewing v. Sanford, 21 Ala. 157, 163 .
The decisively important issue submitted to the jury was on the effect of the advice of counsel given to defendant on the eve of the prosecution complained of — whether it met the requirements of the law in order to constitute probable cause for instituting the prosecution.
Advice of counsel is not the equivalent of probable cause, and therefore is not a complete defense to the action, unless it is honestly sought and acted on in good faith. Jordan v. A. G. S. R. R. Co., 81 Ala. 220, 227 , 8 So. 191 ; Sandlin v. Anders, 187 Ala. 473, 479 , 65 So. 376 . As said in McLeod v. McLeod, 73 Ala. 42 , 46:
“The advice of counsel obtained mala fide will avail nothing, when it is resorted to as a mere shelter to cover up a previously fixed determination to make the arrest in question.”
On this principle refused charge 2, requested by plaintiff, stated a correct proposition of law, applicable to the evidence, and its refusal was prejudicial error. The general instruction that defendant must have acted in good faith in bringing the prosecution does not fairly cover the proposition refused.
Refused charges 43 and 44 are correct propositions of law, but, as framed, they might easily have misled the jury as to the point intended to . be emphasized, viz., the measure of proof, and not the fact of proof ¡ *88 and for that reason their refusal was not error.
In order to constitute probable cause not only must the facts known to the prosecutor be sufficient to induce a reasonable man to believe in the guilt of the accused, but they must actually induce such a belief in the mind of the prosecutor. As said in McLeod v. McLeod, 75 Ala. 483 , 486:
“The question in such cases is not whether the accused was in fact guilty, but whether the prosecutor, acting in good faith, and on the reasonable appearance of things, entertained the reasonable belief of his guilt.”
Charge 9, given for defendant, ignored this essential element of probable cause, and on the authority of Watson v. Cain, 171 Ala. 151 , 54 So. 610 , the giving of the charge must be held as reversible error. On the same principle, refused charge 6 should have been given for plaintiff.
The criticism of defendant’s' given charge 8 is that it requires the stated elements of the tort “to he established by the plaintiff.” According to lexicographers, “to establish” means to fix firmly or immovably; to put beyond doubt or dispute. The word is therefore, in strictness, inapt if used to state the measure or degree of proof required. It has, however, come into rather common use by judges and law writers in stating the elements of the case to be proved. This language of charge 9 is taken from the opinion of the court in Ewing v. Sanford, 21 Ala. 157, 162 ; and it has been repeated in Hanchey v. Brunson, 175 Ala. 236 , 56 So. 971 , Ann. Cas. 1914C, 804, and in Parisian v. Williams, 203 Ala. 378, 382 , 83 So. 122 .
In the instant case, the court was not explaining the measure of proof, but merely the facts to be proved, and if it was considered as misleading, notwithstanding the correct instructions as to the measure of proof several times repeated in the oral and written charges given, we think the duty was on the objector to ask for an explanatory charge — thfe refusal of which might have been reversible error.
We think it was prejudicial error to allow the plaintiff to be cross-examined as to his lack of attendance on his father during his last illness — a fact which was wholly irrelevant to the issues, but capable of creating serious prejudice against plaintiff in the minds of the jury.
Other questions need not be considered. For the errors noted the judgment will be reversed and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J„ and THOMAS and BROWN, JJ., concur.