Wilkerson v. Wilkerson

• Citation: 74 S.E. 740,159 N.C. 265
• Parties: WILKERSON v. WILKERSON.
• Decision Date: 24 April 1912
• Court: United States State Supreme Court of North Carolina

74 S.E. 740

159 N.C. 265

WILKERSON v. WILKERSON.

Supreme Court of North Carolina

April 24, 1912

Appeal from Superior Court, Durham County; Cooke, Judge.

Action by Cecil G. Wilkerson against O. F. Wilkerson. From a judgment for plaintiff, defendant appeals. New trial.

An instruction in malicious prosecution which failed to state what facts would show probable cause was erroneous.

J Crawford Biggs and Bramham & Brawley, for appellant.

Manning & Everett and Bryant & Brogden, for appellee.

WALKER J.

This is an action for malicious prosecution. The defendant had caused the arrest and prosecution of the plaintiff, who was not related to him, upon the charge of having feloniously stolen certain admission tickets belonging to him as proprietor of the Arcade Theater in Durham.

The criminal proceedings were brought before the recorder, and when the solicitor stated that he had not been able to examine the case, and the defendant insisted upon an immediate trial, a nol. pros., with leave, was entered at the suggestion of the recorder, in order to preserve the rights of the state, but the prosecution of the case was never renewed. It is now contended that this was not a sufficient determination of the proceeding to authorize the bringing of this suit. It was held, though, in Hatch v. Cohen, 84 N. C, 602, 37 Am. Rep. 630, and Marcus v Bernstein, 117 N.C. 31, 23 S.E. 38, that a nolle prosequi is a legal determination of the original suit within the meaning of the law concerning malicious prosecution. But defendant contends that this rule does not apply to a nol pros. with leave, as in the latter case the prosecution is kept on foot, or, in other words, is not ended. This, we think, is a misapprehension of the true reason upon which those cases were decided.

A nol. pros. in criminal proceedings is nothing but a declaration on the part of the solicitor that he will not at that time prosecute the suit farther. Its effect is to put the defendant without day; that is, he is discharged and permitted to go whithersoever he will, without entering into a recognizance to appear at any other time. It is not an acquittal, it is true, for he may afterwards be again indicted for the same offense, or fresh process may be issued against him upon the same indictment, and he be tried upon it. To prevent abuse the power of the solicitor to issue new process upon the same bill is checked and restrained by the fact that a capias, after a nol. pros., does not issue as a matter of course upon the mere will and pleasure of the officer, but only upon permission of the court, which will always see that its process is not abused to the oppression of the citizen. This was laid down as fully as we have stated it in State v. Thornton, 35 N.C. 256, and ever since has been considered to be the settled practice. The only difference between a general or unqualified nol. pros. and one "with leave" is that in the latter case the leave to issue a capias upon the same bill is given by the court in advance, instead of upon a special application made afterwards. State v. Smith, 129 N.C. 546, 40 S.E. 1. Referring to this kind of nol. pros., the court in State v. Smith, supra, said: "While we recognize the fact that the courts should control its process, and see that it is not used to the oppression of the citizens of the state, it is also necessary to so use it as to bring offenders to trial and justice. If the court thinks proper to grant such leave at the time the nol. pros. is entered, we do not see why it may not do so; and we do not feel like reversing a practice so universally adopted in the state." The suit is terminated as much by one form of entry as by the other, because in both the prisoner is discharged without day, and that seems to be the true test. In both he can be taken upon a fresh capias, in one by special order, and in the other under the general leave to issue. Our opinion is therefore against the defendant on this point.

But we think there is error in the charge of the court upon the question of probable cause. The court charged the jury as follows: "If you find from the evidence in this case, and by the greater weight thereof, that the defendant procured the arrest of the plaintiff on a charge of stealing tickets, and at the time the facts and circumstances were not such as would lead a man of ordinary caution and prudence reasonably to believe that such offense had been committed, and that the plaintiff was guilty of committing the offense, then there was not probable cause for the prosecution." The decisions of this and many other courts are to the effect that the judge must instruct the jury as to what facts, if found by them, will show that there was or was not probable cause. We have followed the ruling in the celebrated case of Johnstone v. Sutton, 9 T. R. (1 Dumf. & East) 510, 545, where it was held that the question of probable cause is a mixed proposition of law and fact. Whether the circumstances alleged to show the cause to be probable or not probable are true and existed is a matter of fact; but whether, supposing them to be true, they amount to a probable cause, is a question of law, and upon this distinction, Lord Mansfield said, proceeded the case of Reynolds v. Kennedy, 1 Wilson, 232. This case was approved in Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116.

Following the rule of Johnstone v. Sutton, supra, this court decided in Plummer v. Gheen, 10 N.C. 66, 14 Am. Dec. 572, that the parties are entitled to the opinion of the court upon the facts as they may be found by the jury, as to whether there was probable cause or not; and Chief Justice Taylor said: "As the question of probable cause is compounded of law and fact, the defendant had a right to the opinion of the court distinctly on the law, on the supposition that he had established, to the satisfaction of the jury, certain facts. Whether the circumstances were true was a question for the jury. Whether, being true, they amounted to probable cause, is a question of law." In the later case of Beale v. Roberson, 29 N.C. 280, the court said: "This case brings up again the question whether probable cause is matter of law, so as to make it the duty of the court to direct the jury that if they find certain facts upon the evidence, or draw from them certain other inferences of fact, there is or is not probable cause; thus leaving the questions of fact to the jury, and keeping their effect, in point of reason, for the decision of the court, as a matter of law. Upon that question, the opinion of the court is in the affirmative, and therefore this judgment must be reversed." The court then reviewed the authorities, and thus commented upon them, and established the rule as we have stated it: "Such a series of decisions in our own courts the same way would protect the doctrine laid down in them from being drawn into debate now, even if we entertained doubts of its correctness originally. But, independent of authority, our reflections satisfy us that the principle is...