To establish her cause of action the plaintiff must prove: (1) That the defendant instituted or procured the institution of a criminal prosecution against her; (2) that the prosecution was without probable cause; (3) that it was with malice; and (4) that it has terminated in favor of the plaintiff herein.
The court charged the jury in part as follows: “You are not trying a fornication and adultery suit but as to whether the facts and circumstances within the knowlédge of the defendant at the time he instituted or caused to be instituted, if you find he did institute or cause to be instituted, a criminal proceeding before a justice of the peace such as to lead a man of ordinary caution and prudence to believe or entertain an honest strong suspicion that the defendants were guilty of fornication and adultery.”
When the plaintiff instituted this action she tendered the issue of her innocence, notwithstanding her acquittal in the original prosecution, and must fail in her action if that innocence can be disproved, whether the prosecutor acted with malicious motives or not, and whether or not he knew of the facts establishing the plaintiff’s guilt. Evidence tending to prove the actual guilt of the plaintiff is therefore always admissible in favor of the defendant. 18 R. C. L., 57. If a criminal is fortunate enough to escape conviction he should rest content with his good luck and not belabor one who suspected his guilt and acted accordingly. To limit the inquiry on the issue of want of probable cause to the facts and circumstances within the knowledge of the defendant herein at the time of the issuance of the warrant, as was done in the charge, deprives him of the benefit of all evidence which may have come to his knowledge after the prosecution and denies him the right to present facts which might'conceivably, in many cases, tend to prove conclusively the actual guilt of the plaintiff in a malicious prosecution action.
The plaintiff has alleged that there was no probable cause for her prosecution. When there is evidence tending to show guilt this issue is *412to be determined as of tbe date of tbe trial and tbe defendant is entitled' to protect bimself by any additional facts tending to show tbat tbe plaintiff was guilty tbougb be might not bave known them when be began tbe prosecution. Thurber v. Loan Assn., 118 N C., 129; Johnson v. Chambers, 32 N. C., 287; 18 R. C. L., 57. To bold otherwise would make it possible for a guilty person, who through some fortuitous circumstances has been acquitted, to vex bis prosecutor with a suit for malicious prosecution merely because tbe prosecutor was not advertent to all tbe incriminating facts at tbe time be instituted tbe prosecution,, and to recover damages for a prosecution tbat was justified upon all tbe facts.
We are not inadvertent to a number of former decisions in which it is-stated tbat tbe question of probable cause depends upon tbe facts and circumstances which were known to tbe prosecutor in tbe criminal action at tbe time be instituted tbe prosecution. Such statements bave reference to tbe converse proposition. Where tbe innocence of tbe plaintiff is conceded, or is not challenged, evidence of innocence may not serve to impeach or contradict tbe facts and circumstances within tbe knowledge-of tbe defendant at tbe time be instituted tbe prosecution, tbougb evidence of innocence and proof of absence of incriminating circumstances are competent and proper to aid tbe jury in determining whether tbe prosecutor at tbe time of tbe institution of tbe prosecution bad such information as would justify bis action under tbe layr.
So tbat in the trial of a civil action for malicious prosecution the-defendant may elect to attempt to challenge plaintiff’s allegation of want of probable cause in fact, in which event probable cause is to be determined from all the evidence. Or, be may rest upon bis good faith in the prosecution on the facts and circumstances .within bis knowledge at. the time of the issuance of the warrant, in which event, tie nonexistence of probable cause for the prosecution depends upon proof tbat the facts, and circumstances within the knowledge of the defendant at the time be instituted the prosecution were not such as to lead a man of ordinary caution and prudence to believe or entertain an honest strong suspicion tbat the plaintiff in the criminal action was guilty of the crime charged. Smith v. Deaver, 49 N. C., 513; Wilkinson v. Wilkinson, 159 N. C., 265, 74 S. E., 740; Motsinger v. Sink, 168 N. C., 548, 84 S. E., 847. The defendant in this cause elected to rely upon testimony be asserts tends to show plaintiff’s actual guilt. Under these circumstances be was. entitled to the benefit of all evidence pertinent on tbat question.
Although tbe defendant may protect bimself in this action by any additional facts which may bave come to bis knowledge since tbe prosecution, evidence tbat be instituted tbe prosecution when be did not know of facts and circumstances sufficient to constitute probable cause is evi-*413denee of malice. Consequently, evidence of tbe want of probable cause within the knowledge of the defendant at the time he instituted the prosecution is always competent. Humphries v. Edwards, 164 N. C., 154, 80 S. E., 165; Bowen v. Pollard, 173 N. C., 129, 91 S. E., 711.
On the issue of damages the court correctly stated the rule under which the jury should arrive at the amount, if any, they should award the plaintiff. In addition thereto, however, it charged the jury: “That the damages that the plaintiff may recover in a malicious prosecution suit, if any, are usually by the very nature of the wrong, incapable of actual measurement and must rest largely in the discretion of the jury. The court charges you that there is no precise measure of damages in a case of this sort; it is difficult to ascertain the exact equivalent in money for bodily or mental or physical suffering or ■ humiliation or disgrace and mental pain, and that such damages, if any, must rest largely in the discretion of the jury.”
Damages are awarded in the discretion of the jury only on an issue of punitive damages. If the plaintiff is to recover the jury must ascertain the amount of the recovery from the evidence under the rule the court first correctly stated. If she is unable to establish any right to. compensatory damages by reason of the nature of the suit, that is her misfortune. The jury must not be permitted to award actual damages on a discretionary basis.„
For the reasons stated there must be a
New trial.