
    Charles Frederick vs. Louis Halberstadt, James Murtland and Augustus Neiman.
    
      Malicious Prosecution — Probable Cause.
    
    Case for malicious prosecution. Defendants, after obtaining a warrant and having plaintiff arrested, bad dropped tbe prosecution: — Held, tbat tbe failure to prosecute was not prima facie evidence of want of probable cause.
    BEFORE DAWKINS, J., AT CHARLESTON, JUNE TERM, 1866.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ This was an action on the case for a malicious prosecution, and the case, as well as the grounds of appeal, will be more readily understood by stating the testimony.
    “ Nathan Davis, witness: Is one of police detectives. Murt-land, last spring, called at the guard-house; said he had just received a letter from Halberstadt, saying he had lost $110. That he had discharged plaintiff, who had been in his service. Plaintiff was expected that evening by the Northeastern Railroad. Witness and Murtland went to road. Plaintiff didn’t come. Neiman called Saturday after; said plaintiff had come. Witness went with Neiman to the store, and was introduced to plaintiff by him. Arrested plaintiff, who asked what for; witness replied would be told at the guard-house. The charges were there stated: taking Halberstadt’s money. Said he knew nothing about it; was searched and nothing found. Murtland went to guard-house; Neiman said nothing. Monday'morning witness had the case postponed to four o’clock, as Halberstadt and Murtland had not returned from the country;, where he advised Murtland to go for information. Halberstadt and Murtland are partners in planting.
    
      “Murtland said Halberstadt had left money on table covered with paper; went out, and when he returned, money was gone; there was no one there but plaintiff and a Yankee.
    “ P. C. Gailliard, witness: Monday, 5th March, the case against plaintiff for stealing was called. Davis said prosecutor had gone to the country for witnesses. Case continued to four o’clock. No one appeared against liim and was discharged.
    “ L. P. Eoy, witness: Employed about eleven months ago by Neiman & Halberstadt, then partners in planting.
    “James McDonald, witness: Witness and wife of plaintiff went to Neiman’s store, 9th March. Paid her $70, and he witnessed receipt.”
    DEFENCE.
    “ Erancis Adair: Lives on Murtland’s plantation, twenty-five miles from here. . No one in store except Halberstadt and plaintiff. $110 stolen. Plaintiff had been employed in corn and saw-mill; left two days after money taken, before breakfast. Witness saw him eating at a tree on road leading to railroad. Cars pass station about eleven; generally left home for road half-past nine. Day after plaintiff left, Murt-land came to city. Saw plaintiff come out of room, same day money stolen, with chest and tools.
    “ Plaintiff kept tools in kitchen. Didn’t know that money was on table.
    “In regard to the first ground of appeal: I stated distinctly that the defendants could not justify under the general issue. If evidence had been introduced to prove the fact that the plaintiff did steal the money, it would have been excluded. I held that it was competent for the defendants to prove any fact or circumstance which tended to show the existence of probable cause for the proceeding, short of proof of actual guilt. I did not understand defendants’ counsel as proposing to go further. The only evidence objected to was that of the last and only witness for the defence, and the most important facts stated by him had been brought out in the cross-examination of plaintiff’s first witness without objection. I hesitated about granting a motion made by defendants’ counsel for a nonsuit, and believe I ought to have granted it.
    “With regard to the second ¿round: I had said" to the jury all that I considered necessary in relation to the case; stated that to enable the plaintiff to maintain an action there must have been a want of probable cause; pointed out the circumstances of probable cause, and the conduct of the defendant negativing malice. The money was lost; failing to find it in possession of plaintiff, one of the defendants was advised by the detective to visit the person from whom it was taken, and who resided above twenty-five miles from the city, to learn the facts. There was scarcely time for him to have returned to the Mayor’s Court on Monday morning; and being unable to trace it to his possession, further proceedings might well be abandoned. After finishing my charge, and the jury were ready to retire, the counsel for the plaintiff requested that the jury be charged that the failure to prosecute -was prima facie evidence of want of probable cause. This I declined to do, and said to them I thought the evidence sufficient to justify the conclusion there was probable cause; and if so, it would control any legal inference; and said to them it was not the law of the case.
    “ The jury found a verdict for the defendants.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds:
    1. Because, it is respectfully submitted, that - his Honor erred in allowing the defendants, upon the general issue of not guilty, to introduce evidence in justification.
    2. Because his Honor erred in charging the jury that the failure to prosecute was not prima facie evidence of want of probable cause sufficient to throw upon the defendants the onus of proving affirmatively that they had probable cause.
    
      Me Crack/, for appellant,
    cited 1 Chit. PI. 472, 491, 494; 2 Sand. PI. & Ev. 326; 3 Stark. Ev. 1460; Williams vs. Taylor,.6 Bing. 183; 5 Bing. 354; 2 B. & Ad. 845; 1 Green. Ev. § 455.
   The opinion of the Court was delivered by

Dunkxn, C. J.

The report of the presiding .Judge shows that, on the first ground, the plaintiff had no cause to complain.

The second ground substantially assumes that, if the plaintiff had offered no further evidence than the failure of the defendants to prosecute, he was entitled to a verdict. The authorities do not sustain this proposition. Mr. Greenleaf .says (the authority cited by the plaintiff) that, “in' the ordinary cases, it will not be sufficient to show that the plaintiff was acquitted of an indictment, by reason of the non-appear.ance of defendant, who was the prosecutor; nor that the defendant, after instituting a prosecution, did not proceed with it; nor that the Grand Jury returned the bill not found.”

The presiding Judge thinks that he, perhaps, was in error, an not ordering a nonsuit instead of sending the case to the jury. In the early case of Lipford vs. McCollum, 1 Hill, 82, our Courts say: “ What is probable cause is a question of law .for the Court. If there is any evidence, showing an absence of it, the case should go to the jury; otherwise, it is the duty of the Court to order a nonsuit.” In Campbell vs. O'Bryan, 9 Rich. 204, the plaintiff had been arrested on a warrant to keep the peace; but was afterwards released. For want of other proof of want of probable cause, the plaintiff was non-suited.

In submitting the evidence to the jury in this case, the presiding Judge allowed the plaintiff every advantage to which he could be entitled.

The motion is dismissed.

Waedlaw and Inglis, J. J., concurred.

Motion dismissed.  