#### C. C. HUMPHRIES v. D. D. EDWARDS.

(Filed 3 December, 1913.)

1. Malicious Prosecution — Probable Cause — Malice.

In an action to recover damages for malicious prosecution tlie plaintiff must show a want of probable cause in the criminal action, and malice in its. prosecution.

2. Same — Malice Inferred.

In an action to recover damages for malicious prosecution, malice may be inferred from the absence of probable cause, or it may be otherwise established, though malice alone, without the want of probable cause, is not sufficient; and where it appears that the criminal prosecution was with probable cause, the civil action will not lie.

3. Malicious Prosecution — Probable Cause — Trials—Questions for Court.

When the facts are admitted or established in an action to recover damages for malicious lirosecution, the question of probable cause for the prosecution of the criminal action is one of law.

4. Malicious Prosecution — Assaults—Threats—Evidence.

Where one is engaged in doing a lawful act, and is compelled to desist therefrom and retreat by the threats of violence and display of- force by another having the reasonably apparent present capacity and means of carrying his threats into execution or inflict injury, the acts of such person will be held to be the commission of an assault, as a matter of law, in the absence of further evidence as to a pacific intent on the xxart of the aggressor.

5. Same — Evidence—Questions for Court.

In an action to recover damages for malicious prosecution the only evidence upon the question of probable cause for the lirosecution of the criminal action for an assault was that the defendant was marking the line between his land and that of an adjoining owner, which had been ]?lowed over by the tenant of the latter, when the x>laintiff ax>peared, and without provocation, and with rocks in each hand, and in a threatening attitude, using aggressive language, demanded that he desist from his occupation, which, being influenced by the i>laintifl”s attitude, he did and left the place: Held, as a matter of law the evidence established a probable cause for the lirosecution of the criminal action of assault, and a judgment as of nonsuit in the civil action was properly granted.

*1556. Malicious Prosecution — Participation — Evidence—Questions for Court.

It is necessary, in an action to recover damages for malicious prosecution, that the plaintiff show that the defendant authorized the prosecution of the criminal action; and the evidence in this case is held insufficient for that purpose, it appearing, that on -appeal from the justice’s court the judgment there taxing the defendant with costs was reversed in the Superior Court, whereupon the solicitor voluntarily sent a bill to the grand jury, marking the defendant a State’s witness, for the same assault, resulting in a trial and acquittal, and that the court declined the request of the solicitor to adjudge the defendant to be the ' prosecutor.

Appeal by plaintiff from Justice, /./at August Term, 1913, of Euthereoed.

Action for malicious prosecution. Defendant bad prosecuted tbe plaintiff before a magistrate for an assault upon him, under tbe following circumstances: Plaintiff was son-in-law of one Dycus, tbe latter having formerly rented land from defendant, and so ploughed it that tbe furrows obliterated tbe boundary line between tbe lands wbicb adjoined. Defendant went witb one Johnson to mark or stake off tbe line again, and broke some slats of a fence to use for stakes. While they were engaged.in “sighting” tbe line, Dycus approached them and told defendant “to get back.” Defendant said, “You must move your road off my 1-and,” and at that time Humphries went in tbe direction of tbe place where they were standing, witb a mowing scythe in his band, dropped the scythe and picked up some rocks and advanced towards defendant until be got about 8 feet from him,. when be ordered him “to get back, and he got back.” Plaintiff testified: “One rock might have done, but I wanted a plenty in ease I needed them. I did not throw tbe rocks. I got up two of them. They were pretty good size little rocks. I just held them in my bands.” Dycus, plaintiff’s witness, testified: “When Humphries came up, I beard something right behind me, and I looked and it was Mr. Humphries. He said: ‘You-get back over tbe line.’ Edwards replied: ‘Who are you ?’ -and Humphries then said, ‘It’s none of your business; get back over-*156the line/ and Edwards went back.” And again: “Edwards was not trying to assault any one with the slat. He did not attempt to’ assault any one, but had the slat sighting to locate the line. As Humphries came up with the rocks, Edwards began to come back off and get away from there — he backed off a piece and left. After Edwards got off, he hallooed back and asked, ‘Who is that fellow?’ but Humphries would not tell him.”

The court, at the close of the evidence, ordered a nonsuit, on motion of defendant, and plaintiff appealed.

Quinn,.IIamrick & McBorie for plaintiff.

Webb & Mull for defendant.

Walker, J.,

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*157able cause is defined in Moore v. Bank, 140 N. C., 293, to be (quoting from tbe cases) “tbe existence of circumstances and facts sufficiently strong to excite, in a reasonablé mind, suspicion tbat tbe person charged witb baying been 'guilty was guilty; it is a case of apparent guilt, as contradistinguished •from real guilt. It is not essential tbat there should be positive evidence at tbe time tbe action is commenced; but tbe guilt should be so apparent as tbat it would be sufficient ground to induce a rational and prudent man, who duly regards tbe rights of others as well as bis own, to institute a prosecution,” citing Cabiness v. Martin, 14 N. C., 454; Smith v. Deaver, 49 N. C., 513; laggard on Torts, 616. And again: “A reasonable or well grounded suspicion of tbe guilt of tbe accused, based on circumstances sufficient to justify a reasonable belief thereof in tbe mind of a cautious and prudent man, is sufficient defense to tbe action,” citing 19 Am. and Eng. Enc. of Law (2 Ed.), 659; Stacey v. Emery, 97 U. S., 642; Ferguson v. Arnow, 142 N. Y., 580.

"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 *158the evidence most favorably for tbe plaintiff, and if there is any reasonable inference to be drawn therefrom which will authorize his recovery, the judge erred in ordering a nonsuit. But we think that there is clearly not any such permissible view . of the evidence. It yas said in S. v. Hampton, 63 N. C., 13: “An assault is an offer to strike another. In the case before us, the defendant placed himself immediately in front of the prose- , cutor, assumed attitude to strike, within striking distance, in an angry manner, and turned the latter out of his course. This was an offer of violence, and constituted an assault, unless there was something accompanying the act which qualified it and indicated that there was no purpose of violence. The only accompaniment of' the act was the declaration, ‘I have- a good mind to strike you.’ If the declaration had been, ‘I intend to strike you,’ that would not have qualified the act favorably for the defendant. Nor if he had said, ‘I have a mind to strike you.’ It is suggested, however, that the expression, ‘1 have a great niind to strike,’ is used to express indecision,” but the Court held it would not avail the defendant. And in S. v. Myerfield, 61 N. C., 108, assault is thus defined: “An offer to strike is an act which is the beginning of the act of striking, and most usually results in a blow, as if one draws back his fist or raises a stick, it is violence begun to be executed, and amounts to an assault, being ‘an offer to strike.’ ” It was there held that there was no assault; first, when the offer is explained by a declaration showing that there is no intention to strike, and, second, when there-is no intention, provided a certain condition is performed which the party has the right to impose; but if he has no right to impose the condition, it is an assault, or if the offer to strike is made with a deadly weapon, the law does not allow it to be thus. explained, whether defendant had the right or not to impose the condition. We extract the following principle from S. v. Daniel, 136 N. C., 571 : “The principle is well established that not only is á jterson who offers or attempts by violence to injure the person of another guilty of an assault, but no one by the show of violence has the right to put another in fear and thereby force him to leave a place *159where be bas tbe right to be. S. v. Hampton, 63 N. C., 13; S. v. Church, 63 N. C., 15; S. v. Rawles, 65 N. C., 334; S. v. Shipman, 81 N. C., 513; S. v. Martin, 85 N. C., 508; 39 Am. Rep., 711; S. v. Jeffreys, 117 N. C., 743.”

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 *160scythe and then with large rocks, and, when within 8 feet of where he was standing, orders him to get back, and defendant Edwards “got back” Or retreated from his position, that is, went away; from and left the ida.ce where he had a right to be. There were no qualifying words used by Humphries. Besides, he had a deadly weapon, which could have been used effectively in. an instant. As we have said, there were ho explanatory words, shpwing an intention not to strike, 'as in Myerfield’s case, but, on the contrary, Humphries’ attitude towards Edwards was a distinctly hostile and aggressive one, and his interference was, in law, unjustifiable. His language clearly shows that he intended to use the rocks if Edwards had not .retreated and complied with a demand he had no right to make. “One rock might have done, but I wanted plenty, in case I needed them.” He was an intermeddler, when his presence and services were not solicited or needed. , .

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*161fest, tbat is, to use tbe rocks offensively, if defendant did not back away from bis position, wbicb be bad tbe right to occupy. But if bis bidden intention was actually pacific, tbe law judges bim by wbat be did — bis acts and words — and by tbe necessary consequences of bis conduct. Any rational and prudent man would bave concluded tbat be was in danger, wben confronted so suddenly by sucb a peremptory demand, accompanied by sucb a. defiant mien, and tbis was sufficient to justify tbe prosecution of plaintiff in tbe Superior Court, if defendant was responsible for it or its moving spirit. Plaintiff did not approach bim at tbe fence line, so as to inspire confidence in bis good intentions, as a peacemaker, but be came towards bim as a broiler, with tbe avowed purpose of stirring up strife and of doing violence, if be did not yield bis rights, and be, therefore, deliberately brought tbe trouble upon himself.

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.