156 S.E. 501 | N.C. | 1931
The plaintiff alleged and offered evidence tending to show that he was a resident of Clay County, and that the defendant was a nonresident corporation engaged in the manufacture, cutting and removing of logs. In order to facilitate the operation of its business, the defendant maintained a general store or commissary where it sold groceries, shoes, clothing, and general merchandise to the general public and to its own employees. This commissary was broken into and various articles of merchandise stolen therefrom. Whereupon, the defendant, by its agent, *311 Wilhide, signed an affidavit before a justice of the peace named Moore, alleging that the defendant therein and two others "did unlawfully, wilfully and feloniously have in their possession certain goods which plaintiff is fully satisfied were stolen goods from said company's commissary," etc. The plaintiff asked for a removal before some other justice. Accordingly the case was removed to T. C. Melton, a justice of the peace, who bound the plaintiff over to the Superior Court. Thereafter the grand jury found a true bill against the defendant, but the case was continued "for lack of witnesses" at the May Term, 1929, and for a like reason at the September Term, 1929. Thereafter the solicitor took a nol.pros. with leave.
The plaintiff instituted this action for damages. The complaint is drawn solely and exclusively upon the theory of malicious prosecution. At the conclusion of plaintiff's evidence the trial judge sustained a motion of nonsuit, from which judgment plaintiff appealed. (1) Was the warrant issued by the justice of the peace for the arrest of plaintiff void?
(2) Does an arrest by virtue of void process, nothing else appearing, support a suit for malicious prosecution?
The warrant and the affidavit must be construed together, and an inspection thereof will disclose that no crime known to the law of this State was charged in the affidavit. The possession of goods, "which plaintiff is fully satisfied were stolen goods from said company's commissary," does not charge a criminal offense. S. v. Whitaker,
The second question of law involves the distinction between actions for false arrest or imprisonment and malicious prosecution. Corpus Juris, Vol. 25, p. 444, draws the distinction as follows: "Put briefly, the essential difference between a wrongful detention for which malicious prosecution will lie, and one for which false imprisonment will lie, is that in the former the detention is malicious but under the due forms of law, whereas in the latter the detention is without color of legal authority." This Court adopted the same view of the law in Rhodes v. Collins,
The fact that the plaintiff was bound over to the Superior Court by a magistrate and that the grand jury thereafter returned a true bill establishes probable cause prima facie, although such is not conclusive.Bowen v. Pollard,
Affirmed.
