Marcus v. Bernstein

• Decision Date: 15 October 1895
• Court: North Carolina Supreme Court
• Parties: MARCUS v. BERNSTEIN et al.

23 S.E. 38

117 N.C. 31

MARCUS

v.BERNSTEIN et al.

Supreme Court of North Carolina.

Oct. 15, 1895.

Malicious Prosecution—Nolle Pros, at Instance of Accused.

A nolle prosequi entered in a criminal

prosecution is a sufficient termination of the prosecution to authorize the defendant to sue for malicious prosecution, unless the record shows that the nolle prosequi was entered at his instance.

Appeal from superior court, Tyrrell county; Brown, Judge.

Action by Aaron Marcus against Bernstein, Cohen & Co. for malicious prosecution. From a judgment for plaintiff, defendants appeal. Affirmed.

The plaintiff was arrested in a criminal proceeding at the instance of the defendant, and was charged with embezzling goods to the amount of $80, belonging to the defendant. The plaintiff insisted that he purchased the goods out and out, and the defendant insisted that the goods were simply consigned to him to be sold, etc. The plaintiff was arrested, and brought before a justice of the peace for trial, when the plaintiff "acknowledged the claim, and arranged with the prosecutor that if he would withdraw the suit or take a nol. pros., he would settle the claim, which was agreed to." The plaintiff paid the claim, and the prosecutor took a nol. pros, and paid the cost of the criminal action. Plaintiff was thereupon discharged, and brought this action for damages, alleging that the prosecution was malicious. The issues were found in favor of the plaintiff, and he had judgment, from which the defendants appealed.

Shepherd & Busbee, for appellants.

J. H. Blount, W. M. Bond, and R. C. Strong, for appellee.

FAIRCLOTH, C. J. His honor charged the jury that upon the facts in this case the burden was upon the plaintiff to show to the satisfaction of the jury by a preponderance of evidence that the prosecution was not only malicious, but that it was also commenced and the plaintiff was arrested without probable cause, and that the prosecution had terminated before the commencement of this action. This charge was quite favorable to the defendant, and, as the plaintiff made no exception, those questions are out of our way.

It is well settled that the criminal proceeding must be legally terminated before an action of this nature can be maintained, and it is unnecessary to cite authorities on that proposition. What constitutes a legal termination of the criminal action is a question upon which the authorities are conflicting in different states. We shall not review them, nor collect them into opposing scales for the purpose of finding in which scale is the preponderance of evidence, as this court has said that a nolle prosequi is sufficient to enable a party alleging to maintain his action. Hatch v. Cohen, 84 N. C. 602; Welch v. Cheek, 115 N. C. 317, 20 S. E. 460; Graves v. Dawson, 133 Mass. 419. The essential thing is that the prosecution on...