164 N.C. 154 | N.C. | 1913
after stating the case: The first question is, whether’ there was any evidence that defendant prosecuted the plaintiff for the assault without probable cause, for in an action of this kind it is necessary to allege and prove malice, a want of probable cause, and the termination of the former suit or proceedings. R. R. v. Hardware Co., 138 N. C., 174.
Malice may be inferred from the absence of probable cause, or may be otherwise established. Johnson v. Chambers, 32 N. C., 287; Kelly v. Traction Co., 132 N. C., 369; Merrell v. Dudley, 139 N. C., 57. And then there is general malice and particular malice, 'defined and carefully distinguished by Justice Hoke in Stanford v. Grocery Co., 143 N. C., 419; Downing v. Stone, 152 N. C., 525. But it is not sufficient that there should be malice alone; there must be a want of probable cause .for the original proceeding, as this is an essential element of his case when a party is seeking recovery in this form of action, “and1 at every stage of that proceeding.” The very foundation of the action is that the previous proceeding was resorted to or was pursued causelessly. 26 Cyc., 20.
When it appears that there? was probable cause to induce such original suit, the action will not lie, it being a full justification that the defendant had good reason for proceeding in it. Ibid., 20, 21; Jackson v. Telegraph Co., 139 N. C., 347; Betty v. Huntington Loan Co., 74 S. E. Rep., 956. This prob
"When tbe facts are admitted, or otherwise established, what is probable cause becomes a puré question of law. Swaim v. Stafford, 25 N. C., 289; Moore v. Bank, supra: This is so thoroughly settled by tbe authorities tbat very recently we reiterated it witb emphasis in Wilkinson v. Wilkinson, 159 N. C., 265, quoting from Panton v. Williams, 2 Ad. and El. (N. S.), 169, where it is said: “In an action of this sort, tbe judge must determine whether tbe facts, if proved, or any of them, constitute such cause, leaving it to tbe jury "to decide only whether tbe facts, or those inferred from them, exist; and as tbat is so when tbe facts are few and tbe case simple, it cannot be otherwise when tbe facts are numerous and complicated. It would seem, then, that making a question bn this subject must be regarded as an attempt to move fixed things, and cannot be successful either in England or here.”
In the light of these principles, let us examine tbe facts of this case and determine their legal character with respect to the cause of action under consideration.. It must be borne in mind tbat we are dealing witb a nonsuit, and we must construe
It is not always necessary to constitute an assault that the' person whose conduct is in question should have the present capacity to inflict injury, for if by threats or a menace of violence which he attempts to execute, or by threats and„a display of force, he causes another to reasonably apprehend imminent danger, and thereby forces him to do otherwise than he would have done, or to abandon any lawful purpose or pursuit, he commits an assault. It is the apparently imminent danger that is threatened, rather than the present ability to inflict injury, which distinguishes violence menaced from an assault. S. v. Jeffries and S. v. Martin, supra. It is sufficient if the aggressor, by his conduct, lead another to suppose that he will do that which he apparently attempts to do. 1 Archb. Cr. Pr., Pl. and Ev. (8 Ed. by Pomeroy), 907, 908. A concrete example is there stated as follows: “If, therefore, the defendant had threatened the prosecutor with violence, and the threat had been accompanied by any show of force, such as drawing a sword or knife, or if he had advanced towards the prosecutor in a menacing attitude,, even without any weapon, and had been stopped before he delivered a blow, and the prosecutor had been put in fear and compelled to leave the place where he had the lawful right to be, the assault would have been complete, although he was not at the time in striking distance.”
In the most favorable view of the evidence, we find that defendant Edwards was in the quiet and peaceful performance of a perfectly lawful act, with his associate, Mr. Johnson. He had the right to restore the obliterated marks of his line so as to distinguish his land from his neighbor’s and preserve the evidence of his title and the extent of his boundary. "While thus engaged, he is approached in a menacing manner by two men younger than himself, one much younger, and told to stand back, and one of them, the plaintiff in this action and defendant in the former prosecution, advances towards him, first with a
To the facts of this case the language of the Court in S. v. Rawles, 65 N. C., 334, is most appropriate: “The prosecutor was where he had a right to be, and had just been engaged in repairing his fences, which some one had knocked down, and no one had the right by numbers, manner, language, weapons, or otherwise to drive him home by a different path or at a different pace than that which he chose to take. What was the prosecutor to do? Was he to stand still and submit to a battery? Can the defendants stand in a more favorable light before a court of justice merely because their violence was not fully • consummated in consequence of the flight of the prosecutor ? Some stress seems to be laid upon the fact that the gun and other weapons were not taken from the shoulders of those carrying them. As is said in S. v. Church, 63 N. C., 15, that makes no difference, for That would have been but the work of an instant, and was not needed to put the prosecutor in fear and •to interfere with his personal liberty.’ ”
The plaintiff, without any legal provocation, assumed an aggressive attitude towards defendant, .causing him to do what otherwise he would not have done, by putting him in fear- if he refused to comply with orders.' His intention was clearly mani
But we are of tbe opinion tbat tbe nonsuit was right on another ground. There was no sufficient evidence tbat defendant Edwards instituted tbe prosecution for wbicb be is now sued. Bfe charged tbe plaintiff before a magistrate, and tbe plaintiff was acquitted, and defendant taxed with tbe costs. Upon appeal by bim, tbe order of tbe justice was reversed, and be was discharged of tbe costs. Tbe solicitor, it appears, then voluntarily, so far as tbe case shows, sent a bill to tbe grand jury, for tbe same assault,’ • marking defendant Edwards as a State’s witness. Tbe court was asked to adjudge bim to be tbe prosecutor, wbicb be declined to do. ' While be was acquitted, it was incumbent upon plaintiff to show tbat defendant prosecuted tbe indictment or authorized its prosecution at some stage of it, and tbis be has failed to do.
So.tbat, in any view of tbe facts, tbe judge correctly ordered a nonsuit.
Affirmed.