#### ANTOINETTE SWAIM BY HER NEXT FRIEND vs. JOHN M. STAFFORD.

In an action for malicious prosecution, those facts and circumstances, and those alone, which were known to the prosecutor at the time he instituted the prosecution, are to be considered in determining whether he had probable cause. Any other facts, which may be established on the trial to prove the innocence of the person accused, are irrelevant to the question of proba* ble cause.

June 1843

Appeal from the Superior Court of Law of Stokes county, at Spring Term, 1843, his Honor Judge Battle presiding.

This was an action on the case for a malicious prosecution, in causing the plain tiff "to be arrested on a warrant, charging her with feloniously stealing a parcel of belt ribbons — Plea, the general issue. In support of her action the plaintiff introduced and proved the warrant, as stated in- the *290declaration, issued at the instance and on the oath of the de-fondant. The magistrate, before whom it was returned, tes-tided that a belt ribbon, found in the possession of the plaintiff, was produced before him, and that, after examining the witnesses for the prosecution, among whom was the prosecutor, .lohn M. Stafford, the present defendant, he, the magistrate, dismissed the warrant, it being proved on the part of the present plaintiff, that she had purchased the belt produced, or one like it, at a store in Salem a short time before.

The defence relied upon was, that the defendant had a probable cause for the prosecution, and to establish it he introduced several witnesses. Mr. Hartman testified, that the defendant was a merchant, and that the witness, on a Friday about the last of April or first of May, 1840, went to his store and saw the plaintiff, two of her sisters, two or three other grown ladies and two or three school girls in the room; that several parcels of goods were on the counter, near which the grown ladies were standing, the children being a little in the rear- — that he saw the plaintiff, with one elbow leaning on the counter, turning over, as if she were examining, a bunch of belt ribbons, which she had in her hands — that he looked at the plaintiff and saw her look towards him — that he did not turn his attention towards her afterwards — that he did not see any thing suspicious about her — tnat in about fifteen minutes she and her sisters left the store — that he did not see any other person handling the ribbons — that, after the company had gone, the defendant commenced putting his goods on the shelf, when he seemed to miss something, and took the goods down, to examine whether the articles, alleged to have been lost, were among them — that the witness then told him he had seen the plaintiff have the ribbons in her hands — that the plaintiff lived with her father, about two miles or two miles and an half from the store — that on the following Sunday he saw her at a preaching about four miles off, wearing a belt which he thought , like the ribbons she was looking at in the store — that he might, but did not recollect that he did, tell the defendant or any other person that the ribbons were the same — and that the ribbon, produced before the magistrate and now on this *291trial, was, he thought, .like some of those he saw the tiff have in the store. Miss Martha Harris testified that she had frequently been in the defendant’s store, up to within a few months of the time when the warrant was taken out, and had seen ribbons there exactly like the one the plaintiff produced on the trial — that she had seen the plaintiff wear ribbons, but never saw her wearing one, like that produced, either before or since the trial. W. L. ¡Swaim stated that he acted as clerk for the. defendant during April court, 1S40, and he saw there, during that time, ribbons like the one produced. Jackson Stafford, a brother of the defendant, testified that he had owned the store and sold it to the defendant about twelve months before; that, among the goods, were belt ribbons like that shewn on the trial, and that he never saw any of the same kind in other stores.

The plaintiff then called Mr. Lineback, who stated that he had been acting as a clerk in a store for about five or six years — that, at the time when the warrant was taken out, he was clerk in a store in ¡Salem, and, some four or five weeks before that time, had sold to the plaintiff, who came there in company with her mother, a belt ribbon of the same kind, quality and color with the one produced — that such ribbons were common, and there were three or four dozen in the store which he kept. It was also in proof that there were, besides the stores in Salem, two or three others within a few miles of the defendant’s store. Jacob Shultz testified that he had known the plaintiff ever since she was quite young, and had never known any imputation against her character before, and that she was sixteen or seventeen years old when the warrant was issued. A correspondence, just before issuing the warrant, between the plaintiff’s father and the defendant was also introduced, which shewed nothing, but the extreme indignalion of the father at the accusation of the theft against his daughter, and the resolution of the defendant to prosecute the plaintiffs unless the articles alleged to be stolen were returned.

The court charged the jury, that probable cause was the existence of such facts and circumstances, as would excite in a reasonable mind a suspicion of the party’s guilt, and *292would prompt a reasonable man, having a due regard to the rights of others, as well as his own, to commence a prosecution — that the question of probable cause was a compound one of law and fact, that is, the jury were to say, whether the facts were true, and the court was to pronounce on these facts, taking them to be true, whether they constituted a probable cause or not — and that, if the jury believed all the facts testified in this case, there was not a probable cause for the prosecution. The counsel for the defendant then prayed the court to instruct the jury in the very words of Judge Washington, adopted by the Supreme Court of this State in the case of Cabiness v Martin, 3 Dev. 454, “ that probable cause is the existence ot such facts and circumstances, as are sufficiently strong to excite, in a reasonable mind, suspicion, that the person, charged with having been guilty, was guilty — that it is a case of apparent guilt, as contradis-tinguished from real guilt,” and that, in this case, if the jury thought the facts were such as to excite suspicion in a reasonable mind, that, in point of law, amounted to probable cause. But the court declined giving the instruction, as it had already declared, that the facts, if true, did not amount to probable cause.

The jury returned a verdict for the plaintiff, and the defendant, after an ineffectual motion for a new trial, appealed to the Supreme Court,

J. T. Morehead for the plaintiffs.

No counsel for the defendant.

Daniel, J.

This is an action on the case against the defendant, for malicious prosecution in issuing a State’s warrant against the plaintiff for larceny. If there was, at the time, probable cause to issue the warrant, in law the plaintiff should not recover. What is probable cause, when the facts are admitted or ascertained, is a pure question of law. But if the circumstances, alleged to shew a probable cause, are disputed, the jury are to decide whether they are true *293 ox not. The Judge told the jury, “ that if they believed the facts testified to in this case, there was not a probable cause for the prosecution.” It seems to us, that the Judge left the question to the jury, as to the truth of all the facts, as they then appeared on the trial of this action. He told them that if “ these facts were true,” the defendant had no probable cause to issue the warrant. Whereas we think, that the question of probable cause rested only on those facts and circumstances, which were known to the prosecutor at the time he made his affidavit for the warrant. The facts and circumstances, which had come to his knowledge at that time, are those contained in the statements of the witnesses, Hartman, W. L. Swaim and Jackson Stafford, taken in connection with his own affidavit, as incorporated by the magistrate in the State’s warrant. All these facts and circumstances, as it seems to us, were sufficiently strong to induce the defendant to believe that the plaintiff was guilty, and in law amounted to a probable cause for him to issue the warrant. It is trae that, on the trial, the plaintiff proved her innocence in the opinion of the justice.

We are of opinion that there must be a new trial.

Per. Cub-iam. New trial awarded.