#### JOHN MITCHEM v. NATIONAL WEAVING COMPANY.

(Filed 25 November, 1936.)

1. Malicious Prosecution A e — Want oí probable cause does not raise presumption of malice, although jury may infer malice therefrom.

Malice as an essential element of a right of action for malicious prosecution may be inferred by tbe jury from want of probable cause, but want of probable cause raises no presumption of malice, the matter being for the determination of the jury from the evidence, while malice sufficient to support a verdict for punitive damages must be shown by plaintiff by positive evidence beyond the inference of malice from want of probable cause, malice necessary to support the issue of punitive damages being actual ill will or a reckless and wanton disregard of plaintiff’s right, and an instruction that the law presumed malice from want of probable cause entitles defendant to a new trial.

*7333. Malicious Prosecution A d—

A nolle prosequi taken by tbe solicitor upon tbe finding by tbe grand jury of “not a true bill” after tbe committing magistrate bad bound tbe defendant over, is a sufficient termination of tbe prosecution to support an action for malicious prosecution.

3. Malicious Prosecution A c—

Tbe fact that tbe committing magistrate bad bound defendant over is competent evidence on tbe question of probable cause in an action thereafter instituted by tbe defendant in tbe criminal action for malicious prosecution, but sucb fact is not conclusive. Tbe distinction between instances where tbe.magistrate has jurisdiction to try tbe defendant is pointed out.

4. Malicious Prosecution A a—

Plaintiff in an action for malicious prosecution must allege and prove malice,- want of probable cause and termination of tbe proceeding upon which tbe action is based.

Appeal by defendant from Hardmg, J., at March Term, 1936, of GASTON.

Civil action for malicious prosecution.

On 3 September, 1935, a bearing was bad before a justice of tbe peace on a warrant sworn out by an officer of tbe defendant company, charging tbe plaintiff with obtaining goods from tbe defendant under false pretense, and plaintiff was bound over to tbe Superior Court. Thereafter, tbe grand jury returned “not a true bill,” and tbe solicitor took a nolle prosequi.

Plaintiff sues for malicious prosecution.

From verdict and judgment awarding both actual and punitive damages, tbe defendant appeals, assigning errors.

J. L. Hamme for plaintiff, appellee.

Emery B. Benny for defendant, appellant.

Stacy, C. J.

The following excerpt, taken from the charge, forms the basis of one of defendant’s exceptive assignments of error:

> “Now, under this issue, if you shall find that it was done without probable cause, the law implies that it was done with implied malice — a wrongful act done without legal justification.”

This instruction is not supported by the decisions on the subject.

It is true that malice, in the sense the term is used in actions for malicious prosecution, may be inferred from want of probable cause, but it is not presumed from such fact alone. Johnson v. Chambers, 32 N. C., 287.

Speaking to the identical question, in Bell v. Pearcy, 27 N. C., 83, where a similar instruction was held to be erroneous, Ruffin, C. J., *734delivering the opinion of the Court, said: “We think there is error in the point excepted to by the defendant. . . . Hence,' it has been properly said that malice may be inferred from the want of probable cause. Sutton v. Johnston, 1 Term, 493, 545. It is equally apparent that it is not necessarily to be inferred therefrom. On the contrary, it must in every case be properly an inquiry for the jury as to the actual fact, under explanations from the court. If it were not so, it should be said at once that the action lies for a prosecution without probable cause, for it is obviously idle to add that there must also be malice in the prosecutor, if the want of probable cause proves malice. The law draws no such presumption; for, though it often might be true, it would often be untrue in point of fact.”

Again, in Turnage v. Austin, 186 N. C., 266, 119 S. E., 359, it was said: “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.”

And in McGowan v. McGowan, 122 N. C., 145, 29 S. E., 97, it was held (as stated in beadnote which accurately digests the opinion) : “While, in some cases, malice may be inferred from the want of probable cause, the law makes no such presumption, and, in the trial of an action for malicious prosecution, it is for the jury and not the court to make such inference of fact.”

The kind of malice required to support a verdict for actual as well as punitive damages in actions for malicious prosecution was the subject of extensive investigation in Downing v. Stone, 152 N. C., 525, 68 S. E., 9; Stanford v. Grocery Co., 143 N. C., 419, 55 S. E., 815; Motsinger v. Sink, 168 N. C., 548, 84 S. E., 847; and Humphries v. Edwards, 164 N. C., 154, 80 S. E., 165. See, also, Dickerson v. Refining Co., 201 N. C., 90, 159 S. E., 446; Merrell v. Dudley, 139 N. C., 57, 51 S. E., 777; Kelly v. Traction Co., 132 N. C., 369, 43 S. E., 923; 38 C. J., 478; 18 R. C. L., 28.

In Brown v. Martin, 176 N. C., 31, 96 S. E., 642, Allen, J., delivering the opinion of the Court, said: “The rule is established in Stanford v. Grocery Co., 143 N. C., 419, that legal malice, which must be present to support an action for malicious prosecution, may be inferred by the jury from the want of probable cause, and that it is sufficient as a hasis for the recovery of compensatory damages, but that when punitive damages are claimed, the plaintiff must go further and offer evidence tending to prove that the wrongful act of instituting the prosecution ‘was done from actual malice in the sense of personal ill will, or under cir-*735cumstanees of insult, rudeness, or oppression, or in a manner whicb showed the reckless and wanton disregard of the plaintiff’s right.’ ”

The nolle prosequi taken by the solicitor was sufficient legal termination of the prosecution to support an action for malicious prosecution based thereon. Abernethy v. Burns, ante, 636; Dickerson v. Refining Co., supra; Winkler v. Blowing Rock Lines, 195 N. C., 673, 143 S. E., 213; Stancill v. Underwood, 188 N. C., 475, 124 S. E., 845; Wilkinson v. Wilkinson, 159 N. C., 265, 74 S. E., 740. The action of the committing magistrate in binding the defendant there, plaintiff here, oyer to the Superior Court for trial, was evidence of probable cause, sufficient to warrant the jury in finding its existence, but which neither compelled nor required such finding. Stanford v. Grocery Co., supra; Jones v. R. R., 131 N. C., 133, 42 S. E., 559; Griffin v. Sellers, 19 N. C., 492; Plummer v. Gheen, 10 N. C., 66. The case is not like Price v. Stanley, 128 N. C., 38, 38 S. E., 33, where the justice of the peace had jurisdiction to determine the guilt or innocence of the accused. Perhaps the action of the grand jury in returning “not a true bill” neutralized that of the committing magistrate. Miller v. Chicago, etc., R. Co., 41 Fed., 898; Kelly v. Shoe Co., 190 N. C., 406, 130 S. E., 32. But, however this may be, the matter was for the twelve. The burden was on the plaintiff to show the concurrence of malice and want of probable cause. Turnage v. Austin, supra; Overton v. Combs, 182 N. C., 4, 108 S. E., 357; Bowen v. Pollard, 173 N. C., 129, 91 S. E., 711. In short, three things must be alleged and proved in an action for malicious prosecution: (1) Malice, (2) want of probable cause, and (3) termination of proceeding upon which the action is based. Wingate v. Causey, 196 N. C., 71, 144 S. E., 530; Stancill v. Underwood, supra; Carpenter v. Hanes, 167 N. C., 551, 83 S. E., 577; R. R. v. Hardware Co., 138 N. C., 174, 50 S. E., 571.

For error in the charge as indicated, the defendant is entitled to a new trial. It is so ordered.

New trial.