
    C. D. HOLTON v. ASA W. LEE.
    (Filed 7 March, 1917.)
    1. Malicious Prosecution — Trials—Malice—Burden of Proof.
    The plaintiff, in his action for malicious prosecution, must show malice of the defendant in having prosecuted the criminal action against him, and where the lack of probable cause is admitted, testimony, in the civil action, of the magistrate before whom the criminal case had been tried, “that said prosecution was frivolous and malicious, and he taxed the plaintiff with cost,” is incompetent, and its admission constituted reversible error to the defendant’s prejudice.
    2. Appeal and Error — Record—Issues—Mistake—Remanding Case.
    Where in the record on appeal in an action for malicious prosecution the issues set out therein are: (1) “Did the defendant cause the arrest and prosecution of the plaintiff?” (2) “Was the same done without probable cause?” (3) “Was the same done without malice?” to each of which, it appears that the jury has responded in the affirmative; upon which the defendant moved for judgment in the Supreme Court, hut the plaintiff (appellee) contends there had been error in copying the third issue, and 'that in fact it was submitted as to whether the act was done “with” malice; and it further appears that the charge referred to the issue in conformity with appellee’s contention, and the issues submitted had been-lost and cannot be supplied: Held, the case is remanded for the Superior Court to ascertain the fact as to the issue, upon proper evidence, correct its record, and enter judgment in accordance with its findings.
    Civil action-, tried before Lyon, J., and a jury, at October Term, 1916, of Pamlico. Tbe following verdict was rendered:
    1. Did tbe defendant Asa W. Lee cause tbe arrest and prosecution of tbe plaintiff Cburcb B. Holton, as alleged? Answer: “Yes.”
    2. Was tbe same done without probable cause? Answer: “Yes.”
    3. Was tbe same done without malice? Answer: “Yes.”
    4. Has tbe criminal action terminated? Answer: “Yes.”
    5. What damage, if any, has plaintiff sustained thereby ? Answer: “$600.”
    Defendant appealed from tbe judgment thereon.
    
      Z. V. Bawls for plaintiff.
    
    
      Brinson & Brinson and G. R. Thomas for defendant.
    
   WalueR, J.

Tbe plaintiff brought this action to recover damages for malicious prosecution. It appears that tbe defendant bad prosecuted tbe plaintiff before a justice of peace for tbe larceny of money and at tbe trial tbe defendant was discharged for tbe lack of evidence to show probable cause. It is substantially admitted in tbe pleadings tbat tbe criminal proceedings bad terminated unfavorably to tbe prosecutor (defendant in this action), as tbe justice found tbat there was no probable cause upon which to bind tbe defendant (plaintiff herein) to court. Tbe justice was called as a witness for tbe plaintiff and was permitted by tbe court to testify as to tbe contents of tbe record of bis proceedings, from which it appeared tbat be bad discharged tbe defendant (plaintiff in this action), as tbe evidence was insufficient to show probable cause, and tbat “tbe court was further of tbe opinion tbat said prosecution was frivolous and malicious, and taxed tbe prosecutor (defendant in this action) with tbe costs.” Tbe defendant objected to this evidence and excepted to its admission. This exception is sustained. It was admitted tbat this plaintiff bad been discharged in tbe criminal proceedings, because there was no probable cause, so far as shown by tbe evidence, and, therefore, it was not necessary to prove it. Tbe only other fact contained in this record was the finding by tbe justice tbat “tbe prosecution was frivolous and malicious” and bis order taxing bim witb tbe costs because it was so. Tbe objection, therefore, was directed to tbis evidence, as being incompetent to prove malice, and we are of tbe opinion that it was inadmissible, and we have so held in similar cases. Coble v. Huffines, 133 N. C., 422, citing Casey v. Sevatson, 30 Minn., 615, where tbe subject is fully discussed, and tbe reasons which have induced tbe courts to reject such evidence are clearly stated. It was necessary to show malice, as it was one of tbe material elements of the cause of action. “Tbe burden of showing that the prosecution complained of was instituted maliciously and without probable or reasonable cause is, as we have seen, upon tbe plaintiff, and both of these elements must concur or tbe suit will fail; for if tbe prosecution were malicious and unfounded in matters of fact, but yet there was probable cause, tbe action for malicious prosecution cannot be maintained. Newell on Malicious Prosecution (1892), p. 473, sec. 12; Stanford v. Grocery Co., 143 N. C., 419; Downing v. Stone, 152 N. C., 525; Motsinger v. Sink, 168 N. C., 548. Before punitive damages can be recovered express or particular malice must be shown. Stanford v. Grocery Co. and tbe other cases above cited.

There is another question .in tbe case. Tbe record shows that tbe jury found, by their answer to tbe third issue, that tbe plaintiff was prosecuted by tbe defendant without malice. If this be the true verdict, tbe defendant would be entitled to judgment; but plaintiff has applied for a writ of certiorari upon tbe ground that the issue submitted was, “Was the same done with malice?” to which the jury answered “Yes”; that the original issues, upon which the judgment was given, have been lost, and those in this record are not correctly copied in the particular indicated, and the mistake was not discovered until the argument of the case here, when for the first time' the defendant claimed that he was entitled to a judgment upon the verdict. The form of the verdict becomes material for the purpose of deciding whether we shall grant the defendant a judgment or a new trial. There is no necessary conflict appearing in the record itself, but there is a conflict between the record and the case, as the judge, in his charge, refers to the issue as being in this form. “Was the same done with malice?” Where there is a conflict between the record and the case, the former controls. Threadgill v. Comrs., 116 N. C., 616. The second issue is, “Was the same done without probable cause?” and in form the two issues are alike, one containing the inquiry whether the prosecution was without probable cause and the 'other whether it was without malice. It may be, therefore, that the issues as they now appear in the record are correctly drawn. The court below has the power to correct its own records and make them speak the truth. Instead of retaining the case and issuing a writ of certiorari, we direct that the court ascertain what the truth is in regard to this controversy. If the third issue is correctly stated, judgment will be entered on the verdict for the defendant, but if it is not correctly stated, and the jury really answered it in favor of the plaintiff, then the court will amend the record accordingly, and grant a new trial for the error in admitting evidence as above shown. The court may hear such evidence as is competent and pertinent to the inquiry, including that of the judge who presided at the trial.

Error.  