The district court gave the following instruction to the jury: "If the jury find that the defendants learned before the prosecution complained of was commenced by statements which they might reasonably and prudently rely upon and believe, and did rely upon and believe, that Foreman's calves were stolen, and that, within a day or two thereafter, the plaintiff, Johnson, sold and delivered them to Potter, and that, when they were found by Foreman in Potter's herd, Johnson gave his note for their value, and attempted to account for his sale of them to Potter by stating hat he bought them from a stranger, who could not he found, and if defendants in like manner found and believed that his statements and details of the purchase claimed to have been made of such stranger were unreasonable, improbable, and contradictory, and they had no knowledge of any mistake on part in plaintiff's part in making such admissions or explanations, then, as a matter of law, this created a probable cause for a criminal prosecution."
This instruction, except the italicised clause, was given at defendant's request, that clause being added as a modification of the instruction as asked. As modified, the instruction submits to the jury for their determination the question whether defendants had knowledge when the prosecution was commenced that, when plaintiff made the admission that four of the calves which he sold to Potter belonged to Foreman, he was laboring under a mistake as to that fact. If the calves claimed by Foreman were not purchased by Potter from plaintiff, Potter may have known at the time that plaintiff made the admission by mistake, and it would have been entirely proper to submit that question, as to him, to the jury. But plaintiff did not claim that he was laboring under a mistake when he made the admission until after the prosecution was instituted, and there is no evidence tending to show that any of the defendants except Potter had any knowledge or information on the subject until he made the claim. As to them, therefore, the instruction submits to the jury a question on which there was no evidence whatever, and, as there was evidence from which the jury might have found that plaintiff was mistaken when he made the admission, they may have been prejudiced by it. We have so often held that it is reversible error to submit to the jury in material question of fact for their determination of which there is no evidence, that it cannot now be necessary to cite the cases in which the holding has been made.
3. The defendants asked the following instructions, which the court refused to give:
"(6) In cases of larceny, the naked fact that recently stolen property is found in possession of an accused person raises a legal presumption of guilt, and casts upon him the burden of explaining his possession in a satisfactory manner. Until satisfactorily explained, the naked fact of possession of recently stolen property is of itself probable cause for the prosecution of the person possessed thereof.
"(7) By a reasonable explanation is meant a statement of alleged facts which are consistent, rational, and likely to occur in transactions similar to that attempted to he explained.
"(8) An explanation of the possession of recently stolen property which is improbable and unlikely to be true, in the ordinary transactions of men, whereby the possession of personal property is changed from one to another, is not, in law, a reasonable explanation, and no person is bound to accept such explanation, and desist from a prosecution of one who is found to have been in possession of stolen property immediately after the larceny thereof."
The court, however. on its own motion, gave the following instructions:
"(6) To constitute probable cause for criminal prosecution, there must be such reasonable grounds of suspicion, supported by circumstances sufficiently strong in themselves, to warrant an ordinarily cautious man in the belief that the person accused is guilty of the offense charged. The law does not
