
    HENRY TURNAGE v. WILLIAM AUSTIN.
    (Filed 17 October, 1923.)
    1. Evidence — False Arrest — Malicious Prosecution — Instructions—^Appeal and Error — Reversible Error.
    An instruction in an action of false arrest and malicious prosecution, that if the defendant in the civil action believed the plaintiff: therein was the person guilty of the larceny, then they should also find that the defendant was not actuated by malice in causing the arrest, constitutes reversible error in the judge expressing his opinion, upon the evidence, as the existence of malice may exist, independent of probable cause, and upon the evidence the jury may find the one and not necessarily find the other.
    2. Same — Presumptions—Requests for Instruction.
    In an action of false arrest and malicious prosecution, plaintiff’s exception to the judge’s charge for failure to instruct the jury that their finding the absence of probable cause would be prima facie evidence of malice, requiring the defendant to satisfy the jury that the prosecution was not actuated by malice, is untenable, in the absence of a special request to that effect.
    3. Same — Termination of Criminal Action — Questions for Jury.
    In order to recover in an action of false arrest and malicious prosecution, the criminal action, the basis of the civil one, must have terminated, which is a question for the jury in cases of uncertainty or doubt.
    Appeal by plaintiff from Grady, J., at March Term, 1923, of Pitt.
    This was an action for false arrest and malicious prosecution, in that the defendant maliciously and falsely charged the plaintiff with having stolen from the defendant’s car the inner tube of his automobile and caused him to be falsely arrested and tried on said charge.
    Upon the issues submitted, the jury found:
    “I. Was the plaintiff unlawfully arrested, as alleged in the complaint? Answer: No.’
    
      “2. If so, did tbe defendant procure said arrest to be made? Answer : ‘No.’
    “3.' Did tbe defendant cause tbe plaintiff to be prosecuted for larceny in tbe mayor’s court of Tarboro and in tbe .Superior Court of Edge-combe County, as alleged in tbe complaint? Answer: ‘Yes.’
    “4. If so, was sucb prosecution without probable cause? Answer: ‘Yes.’
    “5. If so, was sucb prosecution malicious? Answer: ‘No.’
    “6. What damages, if any, is tbe plaintiff entitled to recover of tbe defendant ? Answer: ‘$400.’ ” ■
    Upon wbicb verdict tbe court adjudged tbat tbe plaintiff recover nothing and tbat tbe action be dismissed, from wbicb judgment tbe plaintiff appealed.
    
      P. R. Hines and Albion Dunn for plaintiff.
    
    
      F. G. James for defendant.
    
   Clare, C. J.

Tbe plaintiff has assigned eighteen errors, but it is sufficient to pass upon two of tbe exceptions taken.

Exception 12. The court charged tbe jury as follows: “Gentlemen, if you find tbat at tbe time of tbe arrest, and at tbe time of tbe prosecution in tbe mayor’s court, tbat tbe defendant believed tbat tbe plaintiff was tbe guilty man, then I charge you tbat you ought to find from tbat, and you can find from tbat circumstance, tbat tbe defendant was not actuated by malice, and if you do so find, it would be your duty to answer tbe fifth issue ‘No.’ ” Tbat is, tbat tbe prosecution was not malicious.

This instruction was erroneous, in tbat it instructed tbe jury what they “ought to find upon tbe evidence,” and tbe jury did find in accordance with tbat instruction tbat tbe prosecution was not malicious.

Another exception is to tbe following portion of bis Honor’s charge: “I charge you, gentlemen, and this is really a repetition of wbat I have already told you, if you are satisfied from tbe evidence tbat tbe defendant was justified in instituting tbe criminal prosecution, or if you find from tbe whole evidence tbat tbe defendant bad reasonable grounds for believing tbat tbe plaintiff bad taken bis tire and inner tube, and tbat bis belief was based upon facts and circumstances wbicb would induce a man of ordinary prudence and intelligence to have sucb belief, and tbat, acting upon sucb belief, be caused tbe plaintiff to be arrested and prosecuted, be could not have been said to have been actuated by malice, and it would be your duty to answer tbe fourth and fifth issues ‘No.’ ” Tbat is, tbat tbe prosecution was with probable cause and tbat it was not malicious.

Tbe jury found tbat tbe plaintiff bad been arrested and tried on a charge of larceny without probable cause, but that such prosecution was not malicious. Tbe plaintiff excepts because the court did not charge that “If the jury should find the prosecution was without probable cause, failure to prove probable cause would be prima facie evidence of malice, and that if such prima facie evidence of malice was established it was the duty of the defendant to go forward and satisfy the jury that the prosecution was not actuated by malice.” It is true that if such prayer had been asked it would have been error not to have given it, but it was not error not to so charge when the case was fully given to the jury and there was no prayer to that effect.

It appears from the evidence that the original charge against the plaintiff was instituted before the mayor, who testified that he found probable cause. It appears that the case was tried in the Superior Court, and the clerk of the court testified to the original papers being on file in his office, and offered in evidence a “certified copy of the judgment of the Superior Court and the indictment.” It must appear in an action of this kind that the original action, on account of which this is brought, had been terminated, and if this leaves anything in doubt it should be made to clearly appear on the next trial.

In an action of this kind it must appear both that the prosecution was malicious and that it was instituted without probable cause. Proof of only one of the essential features, in the absence of proof of the other, will avail the plaintiff nothing. However malicious the defendant may have been, he cannot be held liable if he had probable cause for preferring the criminal cause against Turnage; and however lacking in probable cause his original action may have been, he cannot be held liable in this action unless his proceeding against the plaintiff was actuated by malice. Both are essential requisites in an action for malicious prosecution. Stanford v. Grocery Co., 143 N. C., 419.

The absence of probable cause is not the equivalent of malice, nor does it establish malice per se, though it is evidence from which malice may be inferred, and the existence of probable cause does not make the existence of malice. The presence or absence of malice in its final analysis is a question of fact to be determined by the jury, while probable cause is a mixed question of law and fact.

The instruction of the court, that if the defendant believed the plaintiff to be guilty at the time of the arrest, then they “ought to find” and could find from this circumstance that the defendant was not actuated by malice, was erroneous, not only, as above stated, because it contains an expression of opinion as to what the jury ought to find from the evidence, but because it is incorrect as a charge on the element of malice. McGowan v. McGowan, 122 N. C., 145.

There was error in the trial, as pointed out by the above assignment of error, for which the plaintiff is entitled to a

New trial.  