¶1(dissenting):
¶2Leaving out of consideration the direct testimony of defendant that he saw Bailey take the papers out of Harman’s pocket, and later saw him open the stove door, the remaining facts, that may be regarded as clearly established facts, are not sufficient to warrant the court in saying, as matter of law, that probable cause existed for believing Bailey guilty of the crime with which he was charged. No other witness corroborates defendant in respect to what he says he saw Bailey do, and Bailey flatly contradicts him. Their credibility, as well as the credibility of every other witness, was a jury question. I do not think the evidence Avarrants the assertion of fact in the opinion, that “Bailey was the only person in the room who was clearly and undoubtedly in a position from which the package could have been taken and put in the stove, without Harman’s knowledge.” ITarman had the papers in his right coat pocket, and was sitting at the table. Bailey swears that Peery was standing at Har-man’s right side, and was nearer to him than he was. Bailey is corroborated by Peery, who says he was standing so close to Harman that Bailey could not have taken the papers out of Harman’s pocket without his (Peery’s) knowing it. No witness, except defendant, says Bailey opened the stove door, and no one else present appears to have suspected that Bailey took the papers. He ivas proven to have a good reputation. The only material facts tending to show probable cause, not controverted, were the loss of the papers and the subsequent finding of their charred remains in the stove. It is not shown that Bailey had any motive for destroying them, and, apart from defendant’s testimony, there was as much ground to suspect Peery as Bailey, and not a sufficient ground to war*332rant a reasonable belief that either of them was guilty. The prosecuting attorney testified that all he knew of the commission of the alleged crime, at the time he advised the prosecution of Bailey, was what defendant had told him, and that he so advised because he believed his statements to be true. If what defendant says he saw was true, it amounted to more than probable cause; it was direct evidence of guilt. But if it was not true, there are not, in my opinion, sufficient uncontroverted facts to show probable cause, hence that question was properly submitted to the jury. The case was fairly tried upon all the evidence, and instructions, as to the law, whicK were even more favorable to defendant than the law warrants, and I do not think the court has any right to disturb the jury’s verdict. I would affirm the judgment.