¶1after making the foregoing statement, delivered the opinion of the court.
¶2“To maintain an action for malicious prosecution, it must appear that there was not probable cause for the prosecution, and also that the defendants were actuated by malice in instituting the prosecution. There must be both want of probable cause and malice.” Harpham v. Whitney, 77 Ill. 32-38.
¶3The absence of probable cause must be clearly shown by a preponderance of the evidence, and the burden is upon the plaintiff to show that there was no such cause. If there was reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offense charged, then probable cause exists. Palmer v. Richardson, 70 Ill. 544-546, and cases there cited.
¶4In this case it is conceded that the appellee did take a ton or more of ice belonging to the appellant company. The car was marked with a large card, “ Ice for the Knickerbocker Ice Company,” and if he did not see it, the evidence tends to show that he might, and ought to have done so, before he loaded up his wagon. If he had sold this ice to his own customers, for his own private benefit, no question would arise as to there being probable1 cause for his arrest and prosecution, if these were all the facts known to his accusers.
¶5But it is said that he was acting for his employer, the Metropolitan Ice Co.; that he took the ice under direction of its superintendent; that he delivered the ice to the customers of that company and received no personal benefit from the taking; and that this was known to appellants when the warrant was sworn out. Appellee’s counsel therefore urges that the arrest was without probable cause and was for the purpose of forcing a settlement with the Metropolitan Ice Co.; that appellants knew that appellee had no guilty intent to convert the ice to his own use, but “simply took it for the company he represented, and by mistake.”
¶6There is no evidence that the appellants knew or had reason to know that their ice had been taken by mistake. Nor is it a necessary inference that because the ice was taken for the use of a corporation by which appellee was employed, there was no guilty intent in the taking. If a corporation commits a theft, it acts by its agent. The corporation can not be arrested. The agent can be. If a man commits a theft for the benefit of his employer, he can not escape punishment on that account alone. He may steal and give the booty to another, but his theft is no less a crime. In this case appellee may have had no guilty intent, but its absence was not proven solely by the fact that the ice was delivered to the customers of his employer. If appellee took the ice, knowing it to be the property of the Knickerbocker Ice Co., or if appellants had reasonable grounds for suspicion, supported by circumstances sufficiently strong to warrant such a belief in a cautious man, then there was probable cause.
¶7Appellee has failed to show that there was not probable cause for the prosecution. On the contrary, the evidence tends to show affirmatively the existence of such cause.
¶8The fact that the jury returned a verdict of $2,500, which in the opinion of the trial court was so excessive as to require that all but $400 of it should be remitted, indicates the influence of a prejudice which taints the verdict as a whole. In Palmer v. Richardson, above referred to, Mr. Justice Craig says : “It seems to be difficult for a jury to comprehend that an innocent person may be arrested for a. criminal offense, and at the same time the law affords no redress against the person who caused the arrest and prosecution.”
¶9It is clear that appellee can not recover under the facts as shown by the evidence, and the judgment of the Circuit Court is therefore reversed without remanding.