¶1 (On Petition for Rehearing). Defendant bas filed a petition for rehearing in wbicb be asks a reconsideration of tbe question of the-sufficiency of tbe proof of want of probable cause and a decision upon questions of law raised by certain specified errors wbicb we considered but deemed it unnecessary to discuss.
¶2 Upon the question of tbe sufficiency of the proof of want of probable cause, tbe petition offers nothing new for our consideration and our views on that question remain unchanged.
¶3 First among tbe additional questions we are asked to decide is that of tbe effect to be given to tbe findings of tbe Insanity Board. Concerning tbe plaintiff tbe Board found, “Although this patient was not of normal temperament be was not a fit subject for observation and/or treatment at tbe State Hospital at this time. . . . the patient was released on condition that be make no more threats or attacks on children.” Defendant contends that by this language tbe board, in effect, found that tbe plaintiff bad threatened to kill Jackie Ilubner and that such find *28 ing is conclusive upon the question of probable cause. Assuming that this language may be construed as defendant contends, it, nevertheless, would not have the effect he would have us give it. The effect of the order was to continue the hearing for' further investigation. Clearly the finding contained in the order, if it was such, was not intended as final. In criminal causes, neither the binding over of an accused after a preliminary hearing nor an indictment of an accused by a grand jury is more than prima facie evidence of probable cause. It is doubtful if the order in this case would be of equal effect, certainly it could not be of greater effect.
¶4 At the close of plaintiff’s case the defendant moved the court to direct the jury to return a verdict for the dismissal of the action upon the ground that there was a total failure of proof to 'sustain the allegations of the complaint. Specifically the ground for the motion was that there was a fatal variance between the allegations of the complaint and the proof adduced in support thereof. Plaintiff had alleged the defendant had charged him with being an insane person and the proof established that defendant had alleged that plaintiff was a fit subject for observation and treatment at the State Hospital for the Insane. We see no material variance. Sec. 25-0307 Rev Code 1943 provides r “An application for admission to the state hospital shall be in the nature of a written information and it shall be verified. Such application shall be addressed to the insanity board of the county in which the alleged insane person resides and shall allege that the person in whose behalf the application is made is r
1. Believed by the informant to require treatment and observation at the state hospital;
2. A fit subject for treatment and observation in such hospital ; . . .
3. . . .”
¶5 From a consideration of the above section, it is apparent that in the information filed, the defendant alleged insanity in the statutory language.
¶6 Several errors were specified upon the trial court’s rulings upon the admission of testimony. The first of these relates to *29 the hypothetical question which the witness Leonard was allowed to answer over defendant’s objection. Defendant had testified that he had sought the advice of Judge Leonard, an attorney at law. He stated what he had told Judge Leonard and what advice he had received. Judge Leonard also testified as to defendant’s statements and the advice he had given. Upon cross-examination plaintiff’s counsel asked Judge Leonard to assume that defendant had related to him an entirely different state of facts and answer what his advice would have been had such state of facts been presented to him. Judge Leonard prefaced his answer with the remark, “that is assuming a different question from what was ever asked me” and then stated, “I would have advised him differently.” There was no possibility, under the evidence in this case that the state of facts which the witness was asked to assume could have been related to him as a basis for his advice. The question clearly called upon Judge Leonard to speculate upon a supposition which could not have existed under any view of the evidence. It therefore called for testimony which was inadmissible. 32 CJS 87.
¶7 As a part of his case in chief plaintiff was permitted, over defendant’s objection, to testify as to certain statements made to him by Jackie Huhner and Mrs. Huhner at a time prior to the incident which precipitated this controversy and not in the presence of the defendant. This testimony was admitted upon the theory that in an action for malicious prosecution, it was admissible, under an exception to the rule against hearsay, to show the background of the dispute between the parties. . We know of no such exception to the hearsay rule and no instances of the approval of such a rule have been cited to us. The testimony was clearly hearsay and should have been excluded.
¶8 Defendant specified error upon the trial court’s refusal to permit the individual members of the insanity board to testify as to the separate conclusions they had formed at the inquiry into plaintiff’s sanity, as to whether the plaintiff had in fact threatened to kill Jackie Huhner. The contention of the defendant is that this testimony was competent to explain the board’s inter *30 mediate order continuing the proceeding and releasing the plaintiff on condition that he make no more threats against children. It is stated in the brief, “That this is most vital testimony . . . and it is perfectly proper in view of what the Board did say. It is not contradictory of the record, but explanatory of something that should be explained and something that is most vital . . . on the question of probable cause. If the Board actually and affirmatively found that plaintiff did threaten to kill the boy, then there was probable cause.” We have said above that such a finding would not be conclusive upon the question of whether such .threats had actually been made. That question was an open one for the jury in this case to decide. Their finding upon this issue depended upon the degree of credibility accorded to the testimony of the plaintiff and his witnesses on one hand and that accorded to the testimony of Jackie and Mrs. Huhner upon the other. The proof offered would, in effect, have called for the separate opinions of the members of the Insanity Board upon the truth of the testimony given by Mrs. Huhner in the insanity proceeding. This was not a proper subject for opinion evidence. The offer was therefore, properly rejected. Wigmore, Evidence 3d ed § 1924.
¶9 Defendant also predicated error upon the trial court’s refusal to give certain requested instructions. The' first of these was a request for an instruction to the effect that defendant had not charged that the plaintiff was insane and that there is a vast difference between charging that a person was a fit subject for observation and treatment at the State Hospital for the Insane and charging that such person was insane. We have said above that the effect of the information filed by defendant was to allege insanity in the statutory form. This instruction was therefore properly refused.
¶10 Defendant requested the trial judge to give two separate instructions defining malice. Both were refused and error is specified upon the refusal. In his brief defendant states:
“We can concede for the sake of argument that the court’s definition of malice in the charge given was proper and would stand in the absence of any specific request for a further charge,” *31 and “Our right is to have specifically requested instructions given where they correctly state the law unless the equivalent of the requested instructions is fairly and properly stated to the jury.” ’
¶11 Defendant, however, not point out respect considers the charge given fails to measure up as the equivalent of the requested instructions. We have considered the charge carefully, and while its phrasing differs from that of the requested instructions we are satisfied that it is at least their equivalent in defining and explaining to the jury the nature of the malice which must he established in a case of malicious prosecution.
¶12 The petition for rehearing is denied.