Carson v. Doggett

• Decision Date: 29 March 1950
• Docket Number: No. 163,163
• Citation: 231 N.C. 629,58 S.E.2d 609
• Court: North Carolina Supreme Court
• Parties: CARSON, v. DOGGETT. WARD v. DOGGETT.

Page 609

58 S.E.2d 609

231 N.C. 629

CARSON, v. DOGGETT.

WARD v. DOGGETT.

No. 163

Supreme Court of North Carolina.

March 29, 1950

Roy W. Davis, Marion, for plaintiffs.

Stover Dunagan, Rutherfordton, and Proctor & Dameron, Marion, for defendant.

DENNY, Justice.

The defendant assigns as error the refusal of the court below to grant his motion for judgment as of nonsuit in each case. The cases will be considered separately.

Appeal in the case of Carson v. Doggett.

We think the evidence introduced in the trial below, when considered in the light most favorable to plaintiff, as it must be on motion for judgment as of nonsuit, is sufficient to withstand such motion. Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Grier v. Phillips, 230 N.C. 672, 55 S.E.2d 485. Moreover, defendant's evidence in conflict with the evidence of the plaintiff will not be considered on motion to nonsuit. Chesser v. McCall, 230 N.C. 119, 52 S.E.2d 231; Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462; Taylor v. Hodge, 229 N.C. 216, 50 S.E.2d 307.

The 5th exception and assignment of error is to the failure of the court to state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon, in that the court failed 'to state and explain to the jury what facts, if found to be true by the greater weight of the evidence, would constitute probable cause for indicting and prosecuting each of the plaintiffs.'

In order to establish his cause of action for malicious prosecution, the plaintiff must prove: (1) That the defendant instituted or procured the institution of the criminal proceeding against him; (2) that the prosecution was without probable cause; (3) that it was with malice; and (4) that it was terminated in his favor. Mooney v. Mull, 216 N.C. 410, 5 S.E.2d 122, 125 A.L.R. 893; Perry v. Hurdle, 229 N.C. 216, 49 S.E.2d 400; Alexander v. Lindsey, 230 N.C. 663, 55 S.E.2d 470.

In the trial below, 'probable cause' was defined as meaning 'that the action was instituted without sufficient knowledge and information on the part of the defendant as would cause him or any other reasonably prudent person to believe the plaintiff to be guilty of the offense charged.'

In an action for malicious prosecution, it is the duty of the judge to go further than to define probable cause, leaving the jury to determine what facts do or do not constitute probable cause. He must instruct the jury as to what facts, it found by it from the evidence, will show that there was or was not probable cause. Wilkinson v. Wilkinson, 159 N.C. 265, 74 S.E. 740, 742, 39 L.R.A.,N.S., 1215. In the last-cited case, Walker, J., in speaking for the Court, quoted with aproval the definition of probable cause as given in Smith v. Deaver, 49 N.C. 513, as: ''The existence of circumstances and facts sufficiently strong to excite, in a reasonable mind, suspicion that the person charged with having been guilty was guilty.' It is a case of apparent guilt as contradistinguished from real guilt. It is not essential that there should be positive evidence at the time the action is commenced, but the guilt should be so apparent at the time as would be sufficient ground to induce a rational and prudent man who duly regards the rights of others as well as his own to institute a prosecution; not that he knows the fact[s] necessary to insure a conviction, but that there are known to him sufficient grounds to suspect that the person he charges was guilty of the offense.'

In Smith v. Deaver, supra, the court also said: 'What is probable cause is a question of law, to be decided by the court upon the facts, as may be found by the jury.' Likewise, when the facts are admitted or established, the question of probable cause is one of law for the court. Rawls v. Bennett, 221 N.C. 127, 19 S.E.2d 126; Morgan v. Stewart, 144 N.C. 424, 57 S.E. 149. It is also well to keep in mind that in an action for malicious prosecution, the acquittal of the defendant by a court of competent jurisdiction does not make a prima facie case of want of probable cause. Morgan v. Stewart, supra.

Consequently, the defendant was entitled to have the court instruct the jury that if upon the question of probable cause, the jury should find certain facts from the evidence, and by its greater weight, whether such facts would or would not constitute probable cause. Beale v. Roberson, 29 N.C. 280; Vickers v. Logan, 44 N.C. 393; Jones v. Wilmington & W. Railroad Co., 125 N.C. 227, 34 S.E. 398; Wilkinson v. Wilkinson, supra; Humphries v. Edwards, 164 N.C. 154, 80 S.E. 165; Tyler v. Mahoney, 166 N.C. 509, 82 S.E. 870.

We think the exception to the charge is well taken and must be sustained.

The defendant is entitled to a new trial on this appeal, and it is so ordered.

Appeal in the case of Ward v. Doggett.

The motion for judgment as of nonsuit, interposed below, was properly overruled, if the warrant on which the plaintiff was arrested and tried in the McDowell County Criminal Court was a valid warrant, otherwise not.

The validity of the warrant on which Wesley Ward was arrested and imprisoned is challenged by the motion for nonsuit as well as by the exception to the following portion of the charge: 'There is one matter, gentlemen of the jury, that the Court wishes to clear up by a simple statement of the law, and that is, gentlemen, it appeared from the warrant issued in the Ward case that although the affidavit upon which the warrant was based charging the defendant Ward with the crime of larceny, that the actual warrant itself did not have his name on it but had the name of some third person on it, but it further appeared that the plaintiff was arrested on that warrant, even though the name of another person appeared on it. The Court instructs you, gentlemen of the jury, that if the name of some other person was inadvertently inserted in the warrant by the magistrate when it was intended that the name of the plaintiff should have been inserted in it, and that the plaintiff Ward was arrested upon that warrant, even though that was not his name, the Court instructs you that would not absolve the defendant Doggett in this case from responsibility. I do not mean by that to say that means you should answer this first issue YES, but I do mean to say that if you find the situation existed as I have just referred to it, that you would treat the matter in the same manner as if the proper name, that of the plaintiff Ward, had been inserted in the warrant instead of that of a third person.'

The real question presented for decision is whether the evidence on this record makes out a case of malicious prosecution or one of false imprisonment. The answer turns upon whether the warrant upon which Wesley Ward was arrested was valid or invalid.

According to the evidence of the present defendant, Pink Doggett, he did not know the name of Wesley Ward at the time he procured the warrant against Harrison Long for stealing his slabs. He further testified: 'I intended to write a warrant against Wesley Ward and I did cause this paper (plaintiffs' Exhibit No. 1) to be issued by the magistrate, and I swore to it and signed it. * * * When I swore to this warrant, I gave it to the officer * * Wesley Ward is the man I intended to have arrested, * * * and I got him put in jail, * * * and he was found not guilty by the judge.'

There is no evidence on this record to the effect that Wesley Ward was...